주거침입죄 관련 판례 흐름의 비판적 검토

A Critical Review of the Tendency of the Case of the Break-in

As a member of society, protection of private space is required to maintain dignity and values, develop character freely, and pursue happiness, and for this purpose the crime of break-in is working as an axis that guarantees the tranquility of privacy along with the crime of secret infringement. However, many break-ins are carried out in a way that is contrary to the will of residents in protecting the private serenity but through the peaceful way. In these cases, the Supreme Court has generally pleaded guilty to break-in. And in the process, the Supreme Court has shown subtle differences on several occasions. But we cannot deny that these changes contradict existing theories and subtly conflict with existing precedents. The Supreme Court understands the legally protected interest as private serenity, identifies the intrusion as a violation of the intent, understands the offense as the Verletzungsdelikte, and judges the commision of full offense based on the legally protected interest. At the same time, include public spaces such as public housing as well as perimeter in the objects. Each residence is his castle. But the intervention of the criminal law in a legal case should not be delayed even if it is too advanced. No less logical consistency should be ignored in the interpretation of the penal code. By the way, the Supreme Court has been expanding the scope of the recognition of the break-in through the interpretation of the residence of apartment houses as it has virtually lost the logical consistency of the theory of the private serenity while placing emphasis on the will of residents. This logic is not clear, but it appears to have been influenced by the Japanese precedents and by recent discussions in Japan. This interpretation, however, does not seem to be a reasonable interpretation of the criminal code, This interpretation overlooked the significant difference between Japan and Korea in their interpretation of the crime of break-in. The interpretation of criminal law should not undermine the principle of the fragmentation through over-criminalization. A series of recent cases has raised issues that require very precise judgment in the admission of the break-in. In this regard, our Supreme Court should strive to develop more careful judgment and political logic.