사업장 점거와 형법상 주거침입죄의 관계― 집합건물법상 ‘공용부분’의 점거를 중심으로 ―

As the building structure is being changed from independent to collective form, the type of ownership and residence is becoming more complex and varied. There are limits and restrictions to resolve a civil and criminal problems occurred in the collective building as compared with the independent building. This limits appeared with reference to the occupation of the work in the labor area. Let's take an example. Is it the charge of housebreaking against the third party that jointly use the common area of the collective building, if the worker working in other workplace of the collective building occupied the common area partially? In 2010, the worker was convicted of breaking and entering against the third party. The Supreme Court ruled that the third party in the collective building respectively has the actual tranquility of habitation in the area used by the divided ownership and occupant. But there is doubt that the partial occupation of the common area could be a crime in situations like that. Because the worker has usually the run of the workplace and the common area in the collective building. Therefore the worker is free to use the lobby and passage of the building regardless of the building form. The charge of the housebreaking is to protect the actual tranquility of habitation from the housebreaker unauthorized. Meanwhile the common area of the collective building is not the object of partitioned ownership unlike the part of exclusive ownership. It is just the co-owned part. Therefore it is the area that is universally applied by the rules of public life rather than the actual tranquility. Finally the partial occupation of the workplace could not establish a case of housebreaking purely on the grounds that the occupation act was in the common area of the collective building.