대법원이 제시하는 주거‘침입’ 개념에 대한 비판적 고찰

Abstract

Through Supreme Court en banc Decision 2020Do12630 Decided September 9, 2021, the Supreme Court changed the interpretation of ‘intrusion’, a constituent action of the crime of intrusion upon human residence from “entering another person’s residence against the will of the resident”(the infringement on the resident’s will theory) to “entering another person’s residence in a way of action that disturbs a de facto state of peace and quiet enjoyed by a resident in his/her residence”(the breach of the resident’s peace and quiet theory). However, the key to the issue of ‘intrusion’ on Freedom of Residence under the Constitution is the ‘existence or nonexistence’ of intrusion, not the ‘way’ of intrusion. The same is the concept of ‘intrusion’ under the Criminal Act, which presupposes the concept of ‘intrusion’ in Article 16 of the Constitution. Under the Criminal Act, the constituent actions of the crimes against personal legal interests are basically carried out against the wills of another persons, and the constituent actions, the means, methods and circumstances of actions are separately provided in the Criminal Act. According to the breach of the resident’s peace and quiet theory, ‘intrusion’ becomes a concept that connotes means, method or circumstances of action. But We can see that the concept of ‘intrusion’ cannot be understood as such by comparing the constituent elements of the crime of special larceny(Article 331 (1) of the Criminal Act), the crime of special intrusion upon human residence(Article 320 of the Criminal Act), the crime of refusal to leave(Article 319 (2) of the Criminal Act) and the crime of special refusal to leave(Article 320 of the Criminal Act) with those of the crime of intrusion upon human residence. Moreover, it is also difficult to explain the intrusion committed through omission and the point that the crime of intrusion upon human residence and the crime of refusal to leave are continuing crimes from the perspective of the breach of the resident’s peace and quiet theory. Instead of changing the interpretation of the concept of ‘intrusion’, the Supreme Court should have found the interpretations to resolve the issues from the perspective of the infringement on the resident’s will theory, and I think that would have been the appearance of the Supreme Court fulfilling its role and function as the court of final appeal. The breach of the resident’s peace and quiet theory sees ‘intrusion’, a constituent action as a concept that connotes means, method, or circumstances of action, that goes against the regulation system and the interpretations of the Criminal Act, and there is room for it to be evaluated as de facto legislation. I think, even now, the Supreme Court is right to return to the point of view of the infringement on the resident’s will theory.