주거침입죄 판례의 변화와 의미

Many recent papers dealing with Burglary take a critical view of the Supreme Court's decision and generally defend the position of the previous precedent before the change. In the case of entry for the purpose of extramarital sex, the ruling reflects changes in social ethics, such as the abolition of adultery in the criminal law, and the discussion of Burglary as an alternative punishment has a similar purpose structure to the case of entry for the purpose of recording. In other words, the argument for punishing both of the above is based on the conservative idea that public order must be maintained by criminal punishment as a concurrent crime, even through the expansion of the Burglary and a leap of logic if there are no direct provisions to punish the above acts. However, considering the trend of decriminalization and continuous reduction of criminal punishment due to changes in social ethics, I think it is desirable to be wary of abuse of the crime of Burglary and to purify it through reduced application in accordance with the normative purpose of protecting privacy. In addition, the Supreme Court's decision expresses a series of fundamental positions to determine whether or not a crime has been established by first considering whether or not tranquility was actually broken, which is an objective act, rather than judging whether or not a crime has been established based on whether or not the will has been violated, which is a subjective factor that is difficult to confirm. Through this, I think the Supreme Court has adopted a purer and cleaner doctrine of de facto tranquility than before. In a situation where it is difficult to punish the act that was originally intended to be punished, such as the adultery case or the Chowonbokjip case, the existing case law that punished Burglary as a means of indirect punishment was changed to limit the scope of Burglary, which is a desirable change in precedent according to historical order.