2021년 형법 중요판례평석 - 대법원 전원합의체 판결을 중심으로 -

Abstract

In this paper, five Supreme Court en banc rulings among the criminal law precedents in 2021 were analyzed and reviewed. Unusually, two of them were rulings on the crime of intrusion on housing. Reflecting the changes caused by the abolition of adultery, there was a precedent that denied the establishment of a crime of intrusion into housing for the purpose of ‘marriage exogenous relations’. And there was a precedent that did not recognize the intrusion of housing even for the act of entering the house in a way that harms the de facto tranquility in a situation where the joint residential right holder was blocked from entering. In accordance with the legislative purpose of the Real Name Real Estate Act, there was a precedent that denied the establishment of embezzlement by a trustee who arbitrarily disposed of the entrusted real estate in a bilateral title trust, while there was a ruling that changed the existing precedent for linking to a transmission agent in violation of copyright law. In addition, there was rulings that recognized the practice as justifiable, leaving at the discretion of the judge and reducing both the long and short term of the statutory sentence, when there is a reason for arbitrary statutory mitigation Of the five rulings, the two rulings on home invasion and the judgment on title trust and embezzlement are welcome in that they are rulings aimed at minimizing the intervention of the criminal law in terms of the last resort and supplementality of the criminal law. Unfortunately, however, the judgment on whether a link actor is an assistant offender cannot be considered to conform to the supplementary function of the criminal law. Violation of copyright law is not a criminal approach, but a problem in which civil law resolution should take precedence. It is very regrettable that matters that should be cautious in preparing criminal punishment regulations through legislation should be punished through changes in court precedents. Unlike changing precedents that ease punishment, changing precedents that strengthen punishment should be very cautious in terms of criminal justice and legal stability.