주거의 자유에 관한 공법적 고찰

Abstract

Intrusion upon Habitation sets a household’s de facto tranquility as the benefit and protection of the law. Intrusion in terms of home invasion is defined in multiple aspects as an act of entering into a residence while disturbing the occupant’s entitled peace, and whether or not the act qualifies as trespassing is based principally on the external or objective act at the moment of entrance. Entering a residence with an act of disturbing the de facto tranquility violates the occupant’s intentions excluding particular circumstances; however, the simple of act of entering a residence cannot be immediately accused as an intrusion based on the occupant’s subjective statement that the act of entering itself goes against the intentions of the occupant. This signifies that within the definition of intrusion, Theory of Intention Intrusion (hitherto the act of breaking and entering against the intentions of the occupant) has been modified to curtail the range of the meaning of intrusion to Theory of Tranquility Intrusion(the act of breaking and entering while disturbing de facto tranquility) and this is a crucial turning point. Theory of Intention Intrusion Act that mainly focuses on the intentions of the occupant violates the void for vagueness in that crime establishment is influenced by intentions which leads to an excessive range of punishment and therefore, the paradigm shift is fundamentally justifiable. However, it is difficult to conclude on how to shape cases in which invasion was legally defined and acknowledged under past Theory of Intention Intrusion, and what subsequent verdicts lay ahead will become much center of attention. For example, consent under fraud, criminal and illegal intent entrée, public access are some of the relevant cases. This paper starts with a premise argument(II) on Freedom of Residence and expands to the Benefit and Protection of the Law of Home Invasion and ‘Intrusion’(III), Excuse and the Meaning of Consent of Victim(IV), Trends and Shifts in Recent Main Legal Precedents(V), and lastly Prospects and Assignments(VI) to conclude an argument.