공동주거에 대한 주거침입죄의 성립여부

Abstract

This article discusses whether or not a crime of trespassing is established when another person enters the shared residence with the consent of one of the co-residents. First of all, from the standpoint of the de facto serenity theory on the legal interests of protection of the crime of trespassing, there is a mixture of positions that affirm and deny the crime of trespassing on this issue. The reason is that identifying the legal interests of protection and interpreting the concept of intrusion, which is a component of a crime, are different. It is premised that the concept of trespassing in the crime of trespassing is against the will of the resident, but it is necessary to discuss separately objectively what type of entry against the will corresponds to trespassing. In this paper, as an alternative, I would like to propose the existence of a refusal to enter, which can be recognized from the entrant's point of view, as a criterion for intrusion. This refusal to enter can be expressed by any co-resident, but it must be a situation that can be recognized or recognized realistically by the entrant, whether explicitly or implicitly. And the act of entering the dwelling refusing or ignoring the expressed refusal to enter can be evaluated as intrusion because it can be evaluated as crossing the protection line of privacy set and expressed by the dweller. In this case, the disagreement of intention between co-residents as to whether or not to deny entry is only an internal problem between the co-residents and does not affect the evaluation of the entrants' entry as intrusion. In the situation where the entrant enters the dwelling due to any background and process, if the intention of refusal to enter is not expressed so that the entrant can be recognized, the entry cannot be evaluated as intrusion.