‘공동거주자 간 법익충돌 사안’에 있어서 주거침입죄의 성부 - 대법원의 전원합의체판결(2020도12630 및 2020도6085)을 중심으로

Abstract

The controversy over what is the legal benefit of housing trespass has a long history. These decisions of the Supreme Court, which are dealt with in this paper, are no exception. However, [Subject Judgment 1] is a matter of whether the entry of an outsider (adultery man) constitutes intrusion in the case of 'conflict of legal interests between a resident (wife) and another resident (husband) who allowed an incestuous man into the dwelling', and [Subject Judgment 2] is a 'conflict of legal interest between a resident (wife and sister-in-law) and another resident (separated husband)' in a situation where the couple is separated. In other words, these subject judgment cases are all 'conflict of legal interests between co-residents over housing', and the debate over whether the specific content of legal interests is 'de facto serenity' or 'housing right' resolves the [Conflict of legal interests of co-residents] situation. It's not a key issue to do. In particular, in relation to the problem of normative evaluation of 'outsiders who have obtained the consent of one co-resident' as in [Subject Judgment 1], (1) If we look at this as a problem of [external relations], It is possible to actively intervene in the criminal law. However, (2) this should be approached as a problem of [internal relations], and autonomous regulation by internal norms, such as the jurisprudence of mutual restrictions, is preferable rather than preemptive intervention of external norms. And above all, the starting point of the discussion should be 'the content characteristics of the relationship formed by the residents of the communal residence' and the 'intrinsic limit between the co-residents' reflecting this.