부재중인 거주자의 의사에 반하여 주거에 들어가는 행위에 대한 주거침입죄의 성립여부

Abstract

First, the Supreme Court judges that even if the resident has gone out of the house, actual tranquility's situation which the resident enjoys in the house has still existed in the house. Second, the Supreme Court judges that the resident who is staying out the house is able to have the authority with which (s)he can control the entrance, exit, or stay of others in his or her own power. Third, the Supreme Court judges that when 甲 breaks and enters 乙's house, actual tranquility's situation which 乙 enjoys in the house can be invaded. However, first, if the resident has gone out of the house, actual tranquility's situation which the resident enjoys in the house hasn't existed any more in the house. Then second, the resident who is staying out the house is not able to have the authority which is able to control the entrance, exit, or stay of others in his or her own power in the first place. Then third, even if 甲 breaks and enters 乙's house, actual tranquility's situation which 乙 enjoys in the house is not able to be invaded, namely if 乙 has gone out of the house, actual tranquility's situation which 乙 enjoys in the house can not be spoiled(without reference to 丙's agreement in the Supreme Court of the first case). In this respect, the premise of the Supreme Court is not right and the decision of the Supreme Court based on the faulty premise is not right either. To maintain the judgment having validity on the first case and second case, the Supreme Court must take the view that interests protected by law of housebreaking is not actual tranquility's situation which the resident enjoys in the house but a right to housing.