A study on the crimes of intrusion upon a human habitation and the de facto tranquility among co-residents
Authors: Hong Ga-Hae ,   The Institute of Legal Studies, Kyunghee University
Published: July 2024

The protection legal interest of housing intrusion should be enjoyed fairly by all joint residential rights holders, and the consent of the residential rights holder to the infringement of legal interests is limited to his or her own legal interests, and there is no right to dispose of the legal interests of other joint residential rights. Therefore, even with the consent of some residential rights holders, if it is contrary to the will of other residential rights holders, the crime of invasion of housing may be established. However, just because there was an opposition from the residential right holder does not always mean that it is a constituent requirement of the crime of invasion of housing. The need for criminal protection of dissenting opinions can be recognized on the basis of fair enjoyment of legal interests. If the establishment of a crime of invasion of housing is recognized as the legitimate enjoyment of legal interests of other residential rights holders, it is an abuse of housing rights and unreasonably restricts the enjoyment of legitimate legal interests to housing intrusion. The intention may be explicit, implied, or presumed. The important point is that the need for criminal protection can only be recognized when the intention of the residential right holder enables fair enjoyment of legal interests between residential right holders based on the typicality of the space.
“Conflict of opinions between co-residents on outsiders' access to housing” issue will not be resolved by changing the concept of invasion of housing, as in the case of the en banc decision, but acknowledges the need for criminal protection in the will of the residential right holder based on the fair enjoyment of legal interests. Inviting guests to the residence is the legitimate legal interest of the residential right holder, and the establishment of the residential intrusion crime cannot be recognized by estimating the opposition, which is an element of judgment of 'invasion', which is a constituent act of the residential intrusion crime, according to specific and individual circumstances. A residence is a private space that is disconnected from the outside, and although the opposition to outsiders' access is presumed, it is also a place where guests can be invited to enter at any time. Mutual understanding of this is premised on communal living.
Can it be said that the husband's opposition to the wife's boyfriend, who entered the apartment for the purpose of extramarital relationship, is presumed? If the objection is presumed, what is the basis for it? In order to see only the entry and exit for the purpose of extramarital relations differently, it is possible only when the formality of the “fence of the permanent marriage community” is recognized only for the residence of a couple. So far, we've been talking about the “invasion.” I would like to guess if the Supreme Court, which has consistently been criticized for infringement of intentions, forcibly abolished the theory of infringement of intentions and changed it to the theory of infringement of tranquility was an attempt to overcome the intuition and ambiguity of ethical violations.