간통 목적의 주거침입을 둘러싼 일본의 형법이론 변천에 관한 연구 ― 울산지방법원 2020. 8. 21. 선고 2020노147 판결에 관한 평석을 겸하여 ―

The preceding decision of the Supreme Court of Korea rules that the actual tranquility of a residence is a legal interest that should be protected through the penal statute via the crime of intrusion upon habitation. The Crime of intrusion upon habitation can establish when an actor enters a residence, infringing residential tranquility. An entry in the way of infringing residential tranquility is presumed to be against the resident’s will. Whether a person’s entry is against the opinion of the resident becomes essential data for determining the occurrence of infringement of residential tranquility. This theory is equally applicable to a trespass which has been committed during the resident’s absence. A trespass without the occupant’s consent is an act infringing residential tranquility, which ultimately becomes an act fulfilling the requirement of criminal trespass. The crime of intrusion upon habitation can be established when a third person enters a residence upon the consent of one of the joint residents, while such entry is against the opinion of the other co-resident. Such logic by the Supreme Court is manifested in a case where the defendant entered a residence for an extramarital affair. Supreme Court Decision 83Do685 decided on June 26, 1984 found a defendant guilty where he entered a residence for an extramarital affair with the female resident during her husband’s absence. However, Ulsan District Court Decision 2020No147 decided on August 21, 2020, or the subject case of this study, came to a conclusion completely opposite to the long-endured precedent of the Supreme Court. That is, a defendant who entered a residence upon the consent of the victim’s wife, one of the joint residents, should not be found guilty of a crime of intrusion upon habitation, even when his entry was against the opinion of the absent victim, the other joint resident of that habitation. Thus, the trial panel of Ulsan District Court decided that the establishment of the crime of intrusion upon habitation must be determined from a purely practical point of view ⸺ whether a trespasser infringed residential tranquility. The en banc panel of the Supreme Court in charge of this case now stands at a crossroad between maintaining its existing precedents and changing its opinion to support the conclusion of the Ulsan District Court. Or, the Supreme Court has a third option to rule that the protected interest of the crime of intrusion upon habitation is the right of residence, that is, the right to permit entries of outsiders into one’s habitation. If the Supreme Court adopts this option, it must make one more decision of whether an outsider’s entry could be fully justified upon the consent of one of the co-residents. Any conclusion made by the Supreme Court of Korea would be a theory unlike what the Supreme Court of Japan has heretofore. This study focuses on providing implications for the direction of the Korean Supreme Court by analyzing the precedents and theories developed in Japan over the past 100 years.