공동거주자 사이의 의사불일치와 주거침입죄

The meaning of home is special. It is not only a physical living space, but also a place where individuals shape their personality and realize their self, and a social space where they share their lives with other members. Home invasion should be a crime that reflects these meanings and characteristics of residential space to fulfill the purpose of the Code. This is also true for buildings that are used by multiple people and where social relationships are formed. In particular, cases of residential or premises trespass arising from disagreements between co-residents regarding access to a dwelling or building are often the result of internal conflicts between co-residents, such as domestic discord, domestic violence, and contentious behavior. The court's judgment on whether a person is guilty of residential or premises trespass directly or indirectly affects his or her life and social relationships. Therefore, the court should consider the impact on various conflicting relationships when forming the jurisprudence on home invasion, but the residential trespass and premises trespass cases decided by the Supreme Court lack such consideration. In the future, when conflicts between co-residents arise and the question of whether the offense of home invasion can be established, the following points should be considered When setting the limits of the duty of care in domestic violence situations, the perspective of protecting domestic violence victims should be reflected, and the limits of the duty of care and social norms should not be different standards for the same act. In addition, since co-residents enjoy a strong legal position that they cannot be the criminal subject of the crime of home invasion, it should be avoided to extend the status of co-residents to outsiders. In the case of legitimate strike behavior, the law should move towards ensuring legitimate strike behavior by denying the establishment of the crime of trespassing even in relation to third parties.