주거침입죄에 있어서의 ‘침입’행위의 의미 – 공동거주자의 허락이 대립하는 경우와 관련해서 –

Under Article 319 ⑴ of the Korean Penal Code, it is punishable to break into a residence of another person or into a building guarded by another person etc. The Supreme Court of Korea has explicitly and repeatedly stated that the legal good protected by the provision is a factual state of household peace. In criminal law literature, some authors consider the offence of breaking into a residence, in accordance with the Court’s view, as an attack upon household peace, while some argue that the protected legal good is domestic authority which is based on legal title over the protected area and a factual state of living as well. Such a disagreement regarding the legal good protected by criminalisation of breaking into a residence leads to discussions for interpretation of the elements of the offence of breaking into a residence, especially the implicit meaning of ‘breaking’ (either ‘unauthorised entry’ or ‘trespass accompanied by a actual breach of the peace’) which often comes into question in cases where there are more persons than one who have equal authorization to control access to the protected home, for example in cases where more people share the same dwelling, which can lead to conflicts. This article discusses the issue of whether, in those situations, a consensual authorization of these persons is required for an entry to be authorized, and whether all authorized persons have to agree before the third-person can enter their home. It is suggested by way of conclusion that the term ‘breaking’ shall be defined as a whole by considering diverse factors including forms of entry, and purposes of entry with regard to the perspective of overcoming the obstacle of entry, since the object of protection becomes formalised to the protected space itself and control over it.