Analysis of the Trend of Precedents on Residential Trespassing Regulations

Analysis of the Trend of Precedents on Residential Trespassing Regulations

Purpose: The Supreme Court changed its existing position on the provisions of the housing trespassing offense for 2021 and 2022 through a consensus decision. In 2021, if a part of the co-resident enters the co-living house according to the normal access method with the realistic consent of the current resident in the absence, the establishment of the crime of trespassing is denied even if it is against the presumed will of the other resident who is absent. . In 2022, if you enter a restaurant where the public is freely allowed to enter without a restraint from the business owner, even if it seems that the business owner would not have consented to the entrance if he had known the actual purpose of entry, the purpose of this is not to constitute a crime of trespassing. . Ac-cording to the precedent, the legal benefit of protection for the crime of trespassing is ‘the de facto tranquility of the dwelling’. The purpose of this study is to examine the interpretation and judgment standards regarding the legal interests of protection against trespassing, and to consider trespassing, which is the act of trespassing. Method: Article 16 of the Constitution of the Republic of Korea states, “All citizens shall not be infringed upon their freedom of residence. When a residence is seized or searched, a warrant issued by a judge at the request of the prosecutor must be presented.” The crime of trespassing is a component that guarantees the tranquility of an individual's residence so that the freedom of residence stipulated by the Constitution is not violated. For this purpose, in order to form smooth relationships with various beings in society as a social being, human beings must be guaranteed that their private space is protected and that they can live peacefully without external in-trusion. To this end, first, I would like to review the contents of the Supreme Court precedent on the crime of trespassing. Second, the current status of punishment for trespassing is reviewed through a comparative review of foreign laws on trespassing. Third, we examine the legal benefits of protection against trespassing. Fourth, the criteria for judging the crime of trespassing are reviewed. Lastly, based on the discussion so far, I would like to suggest the direction of the legislation on the punishment for trespassing. Results: The starting point of the discussion of the crime of trespassing lies in the interpretation of the interests of protection. The representative theories are the claim of ‘housing rights’ and ‘the theory of de facto serenity’, but precedents adopt the doctrine of the theory of de facto serenity. As for the degree of protection for the crime of trespassing, the crime of danger and the crime of infringement are opposed to each other. The interpretation of these precedents shows a lot of changes in the protection and interest of the crime of trespassing, the meaning of the infringement, the timing of the commencement of execution, and the timing of implementation. Conclusion: The reason for the existence of the crime of trespass is an indispensable prerequisite for the pur-suit of happiness and the enjoyment of human dignity and value through the tranquility of private life. However, there are many cases where the crime of trespassing is applied and abused for other purposes rather than con-tributing to the protection of personal privacy, which is the original purpose, and a logical solution should be sought for its interpretation. Therefore, it is necessary to explore the legislative direction by analyzing the deci-sion of the Supreme Court of the Supreme Court on the crime of trespassing.