주거침입과 정보통신망침입:보호법익과 ‘침입’의 해석론을 중심으로

In this article, I first examine in every detail the cases related with criminal trespass that occurs at the premises open to members of public and the cases associated with network trespass. Then, in order to avoid unexpected expansion of privacy protection in space, I analyze the protected interest associated with criminal trespass and network trespass and suggest the reasonable scope of protection. Moreover, I present a doctrinal analysis regarding the interpretation of consent in criminal trespass and network trespass. I propose that courts should limit criminal trespass that occurs at the premises open to members of public to the cases in which exact and definite notice have been given, and that network trespass should be limited to access to network that invalidates or circumvents code-based restrictions. The constitutional void-for-vagueness doctrine would help in delineating the proper scope of criminal liability. By means of this process, the criminal trespass and network trespass will completely “metamorphose” into normal sanctions that delicately balance competing interests between actors and draw a bright line between permissible and forbidden uses.