주거방위법리 및 그 수용 가능성의 검토

The defense of habitation doctrine(“castle doctrine”) which was derived from thebritish common law was adopted to the United States, and has recently advanced tosuper castle doctrine. The castle doctrine makes it possible to use deadly force tothe position of inhabitants, and the scope of protection for habitation is extended, aswell as it allows the inhabitants to reenter immediately after retaking the residence. The enhanced defense of habitation doctrine has been adopted by most states of theUnited States, which have influenced the legislations of other countries. In addition,a recent precedent of Germany in fact is said to be accepting the castle doctrine. With such a contemporary trend, it suggests that the way of looking at the defenseof habitation doctrine needs to be changed. For this reason, this paper consideredthe acceptability of this defense of habitation doctrine. When the precedents ofself-defence relating to residence are taken into consideration, they have been toostrict to be fair in terms of reciprocity and not been very mindful of the position ofdefenders, and therefore, they are evaluated as impractical given the urgency of the situations at defense of habitation. In this paper, the acceptability of a moderatetype out of several attitudes for the defense of habitation doctrine is taken intoconsideration. In according to regulations of the constitution and criminal law inhabitation, trespass upon residence can be regarded as a serious menace, and insome cases, can allow the ground for deadly force. Habitation in the defense ofhabitation doctrine in principle following the concept of “habitation” protected by acriminal action of trespass, while, in some cases, it needs to be understood in abroader manner. The targets considered as trespassers include an occupant andcohabitant as well. Since taking action for self-help is prohibited under current law,re-entry and recovery by one's own efforts immediately after retaking theresidence are not allowed. Based on the consideration above, this paperdemonstrates that a moderate type of the defense of habitation doctrine areacceptable though not super castle doctrine, under current law. As such, movingforward from a moderate type of castle doctrine to the super castle doctrine goesbeyond the limit of interpretation, and requires the determination of law-makers.