주거침입죄에서 기망에 의한 출입승낙과 사실상 평온의 침해여부

Abstract

The Supreme Court has emphasized the intention of the resident in determining a crime of intrusion upon habitation. However, in the Supreme Court's 2021. 9. 9. 2020Do12630 judgement, Supreme court ruled that it should be based on the objective and outwardly revealed behavior at the time of entry rather than the intent of resident. Since then, several judgements have been sentenced to different types of housing, including prisons, shared apartment units, private apartment units, retail stores, and restaurants. In particular, when an outsider with a criminal or illegal purpose receives permission to enter a housing or building using deceptive means, the Supreme Court previously recognized the establishment of a crime of intrusion upon habitation on the grounds of contrary to the will of residents and managers. But, the Supreme Court's 2018Do15213 judgement did not recognize the establishment of a crime of intrusion upon habitation in the case of entering a detention center by making the camera in the shape of a business card wallet to hide the existence of the camera. In addition, the Supreme Court's 2022Do1717 judgement did not admit the establishment of a crime of intrusion upon habitation in the case of entering a girlfriend’s house by attatching a camera to a TV with the purpose of filming her body. In both cases the supreme court denied the establishment of a crime of intrusion upon habitation, noting that there was the consent of each manager and resident. However, if there is an active deception, such as disguising it as an everyday object to hide the existence of criminal tools or disguising visitor’s identity, and if it is made as a means of obtaining permission to enter a housing or building, it is reasonable to evaluate it as an act that violates the actual tranquility of the house even though it does not reach the level of denying the effectiveness of the entry approval.