공동거주자간 주거의 자유의 충돌과 주거침입죄 성부 ― 대법원 2021. 9. 9. 선고 2020도6085 전원합의체 판결 및 2020도12630 전원합의체 판결 ―

These judgments changed the existing case law and ruled that be recognized as a housing trespass crime, the entry’s aspect of behavior should break the de facto tranquility externally and objectively. It means that the intention of resident is the only a part of several factors for judging intrusion. The Court ruled that it does not break the de facto tranquility when someone receives consent from one of the co-residents who is being in the house and enters the general way, thus it is not a housing trespass crime. Furthermore, if the outsider’s entering and using of cohabitant place could be evaluated general or accompanying way of consenting person from co-residents, the housing trespass crime does not establish, even though outsider destroys the door. However, under the criminal law, the housing trespass crime defines as a crime to punish the intrusion acts that violate the freedom of residence which is the basic right of constitutional freedom. The freedom of residence is the right to protect one’s residence place from external intrusion and to enjoy de facto tranquility. The benefit and protection of housing trespass crime are the same either the right of residence or de facto tranquility, in that their actual content is not to be violated own’s residence place from someone who does not have consent and to is protected own’s life with tranquility and safety. From these judgments, it is obvious that the resident’s intention is a conclusive factor in judging the housing trespass crime. However, the concept of ‘aspect of behavior breaking the de facto tranquility’ is not clear in presenting general rule criteria to the people. In addition, it only focuses on the ‘physical’ tranquility, not the ‘psychological’ tranquility, so it does not convincingly explain why the ‘case of quietly entering the empty house’ defines as a housing trespass crime. Since the rights of co-residents are equal, it should be a housing trespass crime if one of the co-residents explicitly or implicitly expressed the intention of entry refusal to outsiders, but outsiders enter the residence whether they have received consent from the other resident. On the other hand, the case of entry against the intention of the other resident who does not know the fact of entry and does not express the intention to enter or not is different from the above case. The rights between one who does not allow the entry and the other who allows the entry conflict, so this case should be applied another revised rule which is not from the case that only one resident is being on the residence. In addition, from the intentionality view of the housing trespass, there is a situation hard to recognize the intentionality of intrusion when outsiders have consent from one of the co-residents. Therefore, it is necessary to interpret the constituent elements restrictively through the harmonious normative interpretation by sentencing each interest of co-residents freedom of residence. Like the entry and stay of outsiders is illegal according to the law and order, such as civil and criminal liability, the housing trespass crime can be set up the criterion that the entry and stay of outsiders is impossible to expect the consent from the not existing resident. When the other co-resident is being that moment and it is clear that he or she rejects the entry of the outsider, the intentionality of housing trespass crime could be recognized without difficulty.