주거침입죄 성립의 판단 기준

In recent years, the Supreme Court of Korea has rendered three consecutive en banc decisions concerning the crime of residential trespass. Through these rulings, the Court revised its longstanding interpretation of the statutory element of “trespass,” shifting from the intentional infringement theory to the disturbance of dwelling’s factual peace theory. This change of opinion effectively narrowed the scope of conduct constituting residential trespass. From the perspective of the principle of subsidiarity in criminal law, such a narrowing of criminal liability represents a justifiable and desirable direction in the evolution of Korean criminal jurisprudence. Subsequent academic commentaries have extensively analyzed and critiqued these en banc decisions. The predominant criticism centers on the ambiguity and indeterminacy surrounding the conditions under which the crime of trespass may be deemed established. This theoretical uncertainty has materialized in judicial practice: despite the en banc clarification, numerous lower court judgments have been repeatedly reversed and remanded by the Supreme Court. Alternatives need to be proposed to resolve this uncertainty. Considering the degree of statutory punishment for the Crime of Trespassing, its relationship with other crimes, and the provisions for combined crimes and status-based crimes, a restrictive interpretative approach is necessary. The method of denying the establishment of the crime of trespassing based solely on the legal interest of actual peace of residence as in case law through such a restrictive interpretation is not appropriate from the perspective of the principle of clarity. A more refined interpretative approach, grounded in a systematic and element-specific analysis of the statutory components, is therefore necessary. The object of trespass must be strictly confined to another person’s dwelling, and precise criteria should be articulated to determine when common areas within multi-unit housing-such as corridors, stairwells, or shared entrances-may be regarded as constituting part of a dwelling. Furthermore, the concept of “trespass” itself should be construed according to a combined theory that integrates both the will of the resident theory and the disturbance of peaceful possession theory. Under this synthesized interpretation, instances in which entry occurs against the resident’s will but without a disturbance of the dwelling’s actual peace should be classified as attempted residential trespass, rather than as the completed offense. This interpretative framework would simultaneously achieve several objectives: it would narrow the scope of criminal liability in accordance with the subsidiarity principle, mitigate interpretative uncertainty, reduce prosecutorial burdens in charging decisions, and prevent enforcement gaps where criminal conduct goes unpunished due to doctrinal ambiguity.