부정한 목적으로 주거에 들어간 경우와 주거침입죄의 성부

Abstract

Recently, the Supreme Court made an en banc decision that changes a previous precedent in regards to the crime of intrusion upon habitation. Based on the foregoing, en banc decision has been made consecutively. For the reason, interpretation over crime of intrusion upon habitation has become more complicated. Especially, change of precedent affects particularly how we should understand entry into another's habitation with unjustifiable purposes, habitant's intent and benefits and protections of laws. In terms of a theoretical discussion, establishment of the crime of intrusion upon habitation varies depending on how we understand contents of benefits and protections of laws while asserting it. In case of entering with a purpose of extramarital intercourse, for example, those who asserts residential rights have a different view of establishment of the crime of intrusion upon habitation, and the ones who assert de facto peace and tranquility or separation also look establishment of the crime of intrusion upon habitation differently. In addition to this, a variety of new assertions are being raised. At this point in time, the necessity to arrange crime of intrusion upon habitation의 theory of interpretation has been raised. To conclude, behavior constituting the crime of intrusion upon habitation is intrusion, so decision of intrusion that excludes habitant's intent is irrational. Interpretation of intrusion is subject to habitant's intent. Although de facto peace and tranquility is considered reasonable against crime of intrusion upon habitation in terms of benefits and protections of laws, each case has no big difference in separation. And crime of intrusion upon habitation is not established in case of entering a habitation with the consent of cohabitant. And it is also considered that crime of intrusion upon habitation is not established basically in case of entry by deception unless there are special reasons.