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A study on the establishment of the crime of intrusion upon habitation in the case of shared residence

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2022, 10(4), pp.11-34
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : October 21, 2022
  • Accepted : November 22, 2022
  • Published : November 30, 2022

Kim Jan Di 1

1건국대학교

Accredited

ABSTRACT

Among crime types prescribed in the Criminal Act, there do not seem to be many crimes that cause divergent theories and confused understanding about their specific concrete contents like the crime of intrusion upon habitation. Particularly, the interpretation of intrusion is closely related to the protected legal interest of the crime of intrusion upon habitation, and there are opposing theories regarding the legal interest, i.e., the residential right theory and the de facto tranquility theory. The latter is a position adopted by the prevalent theory and precedents; however, interpretations of specific contents are in disagreement. Meanwhile, the Supreme Court en banc decision recently changed the previous opinion about the interpretation and application of the legal provision, and denied the establishment of the crime of intrusion upon habitation with regard to an outsider’s behavior of entering residence for the purpose of extramarital intercourse after obtaining the permission of one party of residents. While maintaining the position of de facto tranquility theory as to the protected legal interest of the crime of intrusion upon habitation, the Supreme Court differed in the interpretation of its contents and derived the above conclusion. This issue particularly constitutes a problem in the event that residents differ in opinions about an outsider’s entering residence shared by a number of residents. It is expected that cases of disagreement between residents about an outsider’s entering their shared residence will increase in the future due to overpopulation and diversified housing types; and in preparation for this problem, it is necessary to restrict reasonably the scope of the establishment of the crime of intrusion upon habitation by reviewing the legal interest of the crime and clarifying the concepts of object and the criminal act. Hence, this article first examined the trends of precedents after reviewing theories about the legal interest of the crime of intrusion upon habitation. Next, based on the review and examination, this article suggested criteria for the establishment of the crime of intrusion upon habitation in the case of shared residence. Specifically, if residents of shared residence differ in opinions about an outsider’s entry or stay, the opinion of the resident present in residence prevails, and so it may be said that although an outsider enters residence against the presumed intention of an absent resident, the crime of intrusion upon habitation is not established if the resident present in residence permits entry.

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