住居의 自由에 관한 小考

A Study on Freedom of Place of Residence

&nbsp;&nbsp;The Article 16 of Constitution of the Republic of Korea provides that all citizens shall be free from intrusion into their place of residence, and that in case of search or seizure in a residence, a warrant issued by a judge upon request of a prosecutor shall be presented.<BR>&nbsp;&nbsp;This freedom is generally regarded as a kind of privacy. However, it is stipulated a different article(aticle 17). While freedom of place of residence is related to just physical intrusion into place of residence, privacy is devoted to keep all types of private peace. It can not include a right to ask government shall provide a citizen with a residence.<BR>&nbsp;&nbsp;This freedom is guranteed to protect peace of private place of residence. Residence in the article 16 means all kinds of private place of residing, permanently or temperarily, including a house or dwelling. It is debatable whether it includes shop, office or factory. As these places also need to keep peace, they should be included. Foreigners as well as Koreans can enjoy this freedom, and a legal entity such as a company should also be a subject of it. In case of a leased house its actual residing person, its tenant, insists on this freedom against its owner.<BR>&nbsp;&nbsp;Nobody shall not intrude into their place of residence without consent of a residing person in place of residence. Implicit consent is sufficient. If anyone entered place of residence of another person without consent, it should be criminally punished under the article 319 of Criminal Code.<BR>&nbsp;&nbsp;If a policeman want to search or to seizure in a residence, a warrant issued by a judge upon request of a prosecutor shall be presented. Judges have to review request carefully under due process of law. A general warrant is not allowed to prevent a policeman from abusing it. It is doubtable that a warrant is necessary for a general public official to enter place of residence to do his governmental work. If it is not related to criminal purpose and situation is urgent, I think a warrant is not needed because origin of warrant system is related historically to criminal investigation and this kind of entrance aims to take care of a person residing in his residence. Constitutional Court also admitted that a warrant is not necessary to enforce urgently some work on public purpose.<BR>&nbsp;&nbsp;This freedom may also be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated. Many acts including the Fire Fighting Act, the Infectious Diseases Act, and the Labor Standard Act actually restrict freedom of place of residence. However, the principle of proportion shall be strictly applied when the freedom is restricted.