객관화된 의사침해설에 따른 주거침입죄 판단

Abstract

In the case of residential trespassing, a crime can be established when a normative evaluation is made that entering a specific space is illegal. There are two theories as to what the criteria should be for judging an intrusion: the home invasion against resident’s will theory and the tranquility invasion theory. The theory of the home invasion against resident’s will is a view that determines home invasion based on the will of the resident. This view is criticized for subjectivizing the criteria for judging intrusion and expanding the scope of punishment. In contrast, the tranquility invasion theory, which evaluates intrusion based on the behavior at the time of entry, has the advantage of being able to objectify the judgment of intrusion, but is criticized for being difficult to find a difference from the home invasion against resident’s will theory in that it does not exclude the resident's will. In 2021, the Supreme Court changed its opinion to say that the crime of trespassing is established when it is evaluated as illegal based on the ‘objective and external behavior’ rather than the will of the resident. In order to objectify the standards for judging home invasion as intended by the Supreme Court, the above standards must be understood and applied according to the tranquility invasion theory, but in reality, the Supreme Court applied the above standards according to the home invasion against resident’s will theory. As a result, a gap arose between the literal meaning of ‘objective and external behavior’ and its practical application. Recently, there has been a discrepancy in the interpretation of ‘objective and external behavior’ between the lower courts and the Supreme Court. The Supreme Court considered that when de facto tranquility is considered a protected legal interest in home invasion, there is an inevitable relationship that home invasion must be judged based on ‘objective and external behavior.’ However, the current Supreme Court must recognize the fact that it has no choice but to judge intrusion based on the will of the resident because the mental, psychological, and potential peace is included in the protection of home invasion. Furthermore, the standard of ‘objective and external behavior’ selected by the Supreme Court corresponds to the theory of home invasion against resident’s objectified will that presupposes recognizability from the outside, so there is a need to revise the judgment standard.