주거침입죄에서의 ‘침입’의 의미에 대한 체계적 이해를 위한 비판적 고찰

Abstract

Recently, a number of Supreme Court all-consensus rulings were sentenced for the crime of infringement of housing. The judgment of the Supreme Court’s all consensus does not clearly present the criteria for resolution in various cases. If the protection legal interests of the crime of infringement of housing is understood as ‘the free will of a person with de facto tranquility,’ both the ‘de facto peace theory’ and the ‘intrusion of intention theory’ can be covered. The ‘aspect of behavior that harms de facto tranquility’ understood by the Supreme Court’s ruling as ‘invasion’ can also be understood as ‘aspect of behavior that harms de facto tranquility against the will of the resident.’ In the end, it can be seen that the meaning of ‘invasion’ in the crime of infringement of housing contains the content ‘against the will of the resident.’ According to the theory, in the case of places where joint dwellers are not problematic, if there is an ‘exclusively opposed intention’ of a resident who is worth protecting under the criminal law, it is an ‘invasion.’ If there is an ‘implicit objection’ of the resident(cases there is no explicit consent in the true sense while entering in a violent manner or entering places where public access is not permitted), it is also an ‘invasion.’ In other cases, it is not an ‘invasion.’ Next, let’s look at the case of a place where joint residents are problematic. It is difficult to interpret that the ‘housing’ of the crime of infringement of housing requires the ‘housing of others.’ Therefore, the case in which a joint resident directly enters a joint residential area can be understood in the same way as in a place where a joint resident does not have a problem. In the case where a third party enters a common residence, if it’s a place where the public is allowed to enter and there’s an explicit opposition that’s worthy of criminal protection(cases where there is a provisional disposition prohibiting access by the court), it’s an ‘invasion.’ If there is an ‘implicit objection’ of a joint resident(cases where there is no explicit consent from the real meaning of the joint resident while entering using violent acts), it is also an ‘invasion.’ In other cases, it is not ‘invasion.’ In the case of a place where the general public is not allowed to enter, it can be seen that there is an ‘implicit objection’ against the access of outsiders in general. If there is an ‘exclusively opposing intention’ of another joint resident with criminal protection value(cases where there is an explicit objection by the spouse to the other party of adultery, and there is a disposition of prohibition of access by the court), it is ‘invasion.’ In this case, it is difficult to say that the ‘exclusive consent’ of the joint resident has a criminal protection value, and it is difficult to say that it is an ‘understanding’ that does not apply to the constituent requirements. Next, let’s look at the case where there is no ‘explicit objection’ with the criminal protection value of other joint residents. If a joint resident has an ‘exclusive consent intention’ without deception in the true sense, it is difficult to say that the access of a third party is an ‘invasion.’ The ‘exclusive consent intention’ is an ‘understanding’ that does not apply to the constituent requirements. On the other hand, if there is no ‘exclusively willingness to consent’ in a true sense(acceptance by deception etc.), it’s an ‘invasion.’ In other cases, it’s not an ‘invasion.’ In reviewing the Supreme Court ruling based on this theory, an example of the problem with the conclusion is the ‘Jail Entry Judgment.’ If the consent was obtained by deceiving the manager, it is difficult to say that the consent is consent in a true sense. A place such as a prison is generally not allowed to enter, and it can be seen that the manager’s ‘implicit objection’ exists, so it should be considered as an ‘invasion.’ The term ‘invasion’ in the crime of infringement of housing can be defined simply and clearly as ‘an act of entering against the explicit or implied intention of a resident with criminal protection value.’ According to this explanation, various cases can be interpreted reasonably and systematically.