성폭력처벌법상 주거침입의 구체적 판단기준- 대법원 2022. 8. 25. 선고 2022도3801 판결을 대상으로 -

Abstract

In the past, the Supreme Court judged whether it constituted an Intrusion upon Habitation(Hereinafter referred to as 'intrusion') on the basis of the will of the person with the right to reside. Thus, entry for the purpose of committing a sexual crime itself constituted an intrusion. However, the court recently changed its attitude. Saying that the legal interest of intrusion is de facto tranquility of housing, it decided that whether it constituted an intrusion should be judged based on the act of entry. The same change also applied for sexual crimes. Contrary to past precedents, the Supreme Court judged whether there was an intrusion in sexual crimes through a detailed examination of the facts related to the act of entry. The purpose of this study is to present specific criteria for intrusion according to the type of crime scene in sexual crimes, focusing on the Supreme Court decision 2022 do 3801 on August 25, 2022. The court divided the private space from the public space, which is reasonable. However, its judgment on intrusion, based on the defendant's act of entry to the area inside the common entrance of an apartment and a commercial building, is not acceptable. The aggravated punishment for sexual crimes after intrusion is based on the need for strong protection for the victim due to the specificity of the crime scene and the size of the damage. Even if we follow the court's new attitude, whether it constitutes an intrusion under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes(Hereinafter referred to as 'the Act') should be evaluated focusing on the legal nature of the crime scene. The legal nature of the space can be judged with its general nature. When it is ambiguous, it should be judged based on the presence or absence of management. For example, private houses, the area inside the common entrance of an apartment building, changing rooms or toilets in commercial buildings are private spaces according to their general nature. The entry to the private space without consent of the resident or occupant itself constitutes an intrusion under the Act. If a criminal enters the yard of an apartment in an unusual manner even though access to the yard is thoroughly managed, it is an intrusion under the Act. Since strong protection for victims is not required in public space, entry to public space does not constitute an intrusion under the Act regardless of the act of entry.