주거침입죄의 보호객체로서 ‘위요지’의 판단기준

Abstract

Article 319, Paragraph 1 of the Criminal Act clearly enumerates 'ones's residence', 'guarded structure, ship or aircraft' or 'occupied room' with regard to objects of criminal trespass. However, courts have expanded the objects by accepting land adjacent to residence or structure(so-called 'land around building') as residence or structure provided that 'land around building' meets certain requirements. According to case law, a garden attached to a residence or structure, a space between a room and a wall inside a residential gate, a university's playground, a hospital's yard and a government building's yard are included in objects of criminal trespass. The Supreme Court understood legal interest of trespassing as de facto tranquility at 2009 Do 14643 which the Court judged on April 29, 2010(case Ⅰ). The Supreme Court also provided conditions in order to include land adjacent to structure in a structure, as land around building, regarding criminal trespass. The Court required that the land be objectively and clearly showed up by personal or material equipments. In this case, however, the Court held that the cattle shed at issue had not been zoned by personal or material equipments and, consequently, did not meet the requirements. At 2009 Do 3452 which the Supreme Court judged on August 20, 2009(case Ⅱ), the Court determined that common areas of multi-dwelling units such as stairs and halls come under a one's residence, a kind of objects of criminal trespass, if common areas of multi-dwelling units are (1) essential parts attached to private areas (2) under ordinary control or management and (3) necessary to protect their de facto tranquility. Whether land around building is an object of criminal trespass should depend on whether resident's freedom of decision-making is absolutely respected in the related area. In this respect, both case Ⅰ which the cattle shed around the victim's residence were not regarded as objects of criminal trespass and case Ⅱ which stairs and halls in the multi-dwelling units were understood as objects of criminal trespass are reasonable. However, common areas in the second case should be categorized into 'guarded structure' which permits the general public's access to some degree in that common areas inside the building are 'limited-open private areas' between living rooms, 'closed private areas,' and building sites, 'open private areas'.