주거침입죄에서 공동주거권 행사의 한계- 대법원 2021. 9. 9. 선고 2020도12630 전원합의체 판결을 중심으로 -

1. In a case where a man A, who has an affair with B’s wife C, entered with her consent B and C's shared residence with the purpose of having extramarital sexual relations while B was absent, the Supreme Court en banc Decision 2020do12630 ruled according to the Theory of de facto Peace(in Ger. Hausfrieden) that A was not guilty of trespassing. The Supreme Court understand the meaning of ‘de facto Peace’ to be the factual peace of a current resident in the residence, and thus ruled that the act of entering a residence with the consent of C, who was present in the residence, was not trespassing. 2. Since the concept of de facto peace, according to the literal interpretation, refers to the actual state of peace that a resident enjoys in his residence, it is logical to judge a trespass that harms this ‘de facto Peace’ through fact-finding. Therefore, there is no logical problem with the Supreme Court’s en banc Decision 2020do12630 that the act of the man A, who entered the residence with the actual consent of the current resident, is not trespassing. However, it is questionable whether this new criteria dopted by the Supreme Court can lead to a reasonable conclusion in various types of cases. This is because co-residents have equal rights to the residence, but in cases where there is a conflict of opinions among co-residents regarding the entry of outsiders, it is difficult to appropriately balance the two conflicting interests. 3. The Theory of Right to Residence(in Ger. Hausrecht) has the advantage of securing fairness by resolving conflicts of interests in various cases from the perspective of limitations on exercising rights when there is disagreement among co-residents about the entry of outsiders. There is a critic that the meaning of the ‘Right to Residence’ is unclear and thus undermines legal stability, but this is not a problem with the concept of ‘Right to Housing’ itself, but rather due to insufficient discussion on it. 4. The Right to Residence presupposes de facto control over the residence, so its legal nature is similar to that of possession(in Ger. Besitz) under civil law. Therefore, if possession is legally initiated at the beginning, even if the original right is later extinguished, the right to residence remains validly. For example, even if a Housing Lease Agreement is terminated and the housinglessor returns the deposit, and the housinglessee loses the title of possession, the lessee's possession is still permitted under civil law, so the lessee has the right to residence. 5. Even in the case where there is disagreement between the co-residents regarding the exercise of the right to residence in a joint residence, such as the residence of a married couple, the theory of possession under civil law must be taken into consideration to resolve the conflict. In civil law, possession, like other rights, is subject to certain restrictions on its exercise, such as the principle of good faith or the principle of prohibition of abuse of rights, and therefore the exercise of rights to co-residence based on possession is also subject to corresponding restrictions. The Theory of Right to Residence presents the possibility of expectation(in Ger. Zumutbarkeit) as a limitation on the exercise of rights to residence based on this principle. According to this standard, if a spouse of a married couple allows an outsider to enter for the purpose of adultery, the spouse cannot expect the other spouse to accept this, so the outsider’s entrance to co-residence constitutes trespassing.