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KCI등재 학술저널

범죄목적을 숨긴 출입은 주거침입인가?

대법원 1984.12.26.선고 84도1573 전원합의체 판결

The offense of disturbance of domestic peace and security (trespass) has a not inconsiderable amount of theoretical problems that deserve a closer look. Among them is the following case, whether the enter through concealing the criminal purpose must be punished with trespassing. Previously the supreme Court of Korea affirmed on this issue with the grounds that penetrate is against the true (hypothetical) will of the injured. But the solution of supreme court is not without problems. Penetrate is entering the protected space against the will of owner or others who have the right of possession. So if the owner approves entering, there is a priori no ‘penetrate’ and therefore no trespassing. The consent of the owner is basically also effective even if it was fraudulently by mere deception. The intent of the perpetrator in the house to commit a crime (for example theft) is not critical because it is not recognizable to outsiders. This view is substantiated by a case study: Through deception of his purpose A can go into another house with consent of owner. After A’s criminal plan this first visit is only for identification of the object of the crime. He wants to commit theft at the next visit, if only there is nobody in the house. In my opinion, A can not be punished as the offense of trespass.

Ⅰ. 대상판결의 소개

Ⅱ. 판례의 의미

Ⅲ. 주거침입죄의 보호법익

Ⅳ. 범죄목적의 주거침입

Ⅴ. 맺으며

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