[1] The meaning of "a summary of the crime of intrusion" included in "building", which is the object of the act of intrusion in the crime of intrusion

[2] The case holding that the act of driving the vehicle on the road immediately abutting on the road where the passage of the vehicle is frequent, and of entering the entrance, etc. of a residential building, a stable, or a facility consisting of four buildings or a vinyls into two greenhouses, and there is no other door, fence, or other human or material facilities to control the entry, etc., and any person can freely leave the road through the passage of the width of five meters up to the front of the stable, and there is an error of misapprehension of legal principles, etc. in the judgment below that the act of entering the above passage to the front of the stable constitutes a intrusion of residence

[1] In the crime of intrusion upon residence, the "building", which is the object of the crime of intrusion upon residence, includes not only the building itself, but also the summary of the above attached thereto, in light of the fact that the crime of intrusion upon residence actually takes place as a legal interest protected by the law. However, it should be objectively clearly revealed that the above summary is that the land adjacent to the building, which is installed by a fence, etc. on the boundary with the outside, is provided for the use of the building, and that the land is not accessible to the outside without permission. Therefore, even if the land adjacent to the building, which contributes to the use of the building, is a land adjacent to the building, there is no partition or control by human or physical facilities, and it is difficult to view that the outside person's access is generally restricted, and it does not belong to the object of the crime of intrusion upon residence, unless there are any special circumstances.

[2] The case holding that the act of driving the vehicle on the road immediately abutting on the road where the passage of the vehicle is frequent, and of entering the entrance, etc. of a residential building, a stable, or a facility consisting of four buildings or a vinyls into two greenhouses, and there is no other door, fence, or other human or material facilities to control the entry, etc., and any person can freely leave the road through the passage of the width of five meters up to the front of the stable, and there is an error of misapprehension of legal principles, etc. in the judgment below that the act of entering the said passage and entering the front of the stable constitutes a residential intrusion.

[1] Article 319(1) of the Criminal Act / [2] Article 319(1) of the Criminal Act, Article 2(1)1 of the Punishment of Violences, etc. Act and Article 2(2) of the Punishment of Violences, etc. Act

[1] Supreme Court Decision 2003Do6133 Decided June 10, 2004, Supreme Court Decision 2005Do5351 Decided October 7, 2005 (Gong2005Ha, 1809) Supreme Court Decision 2009Do12609 Decided March 11, 2010 (Gong2010Sang, 773)

Defendant 1 and one other

Defendants

Suwon District Court Decision 2008No6095 Decided December 3, 2009

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

1. In the crime of intrusion upon residence, the “building”, which is the object of the crime of intrusion upon residence, includes not only the building itself, but also the summary of the above attached thereto in a strict sense in light of the fact that the crime of intrusion upon residence actually takes place as a legal interest protected by the law. However, the above summary is objectively clearly revealed that the land adjacent to the building, which is installed with a fence, is offered for use by the outside and the boundary of the building, and is not accessible without permission by the outside (see, e.g., Supreme Court Decision 2003Do6133, Jun. 10, 2004). Therefore, even if the land adjacent to the building, which contributes to the use of the building, is a land adjacent to the building, there is no division or control by human or physical facilities, and if the boundary can be easily passed through the walking, it is difficult to view that it does not belong to the object of the crime of intrusion upon residence unless there are any special circumstances.

2. The lower court determined that ① the instant cement facilities consisting of the victim’s non-indicted 1’s residential building, four stables, and two vinyls, and the passage of cement to the said facilities is excluded from the entrance of the said stables, or the entrance of the said stables is not in a separate length from the outside to the above stables. ② The entrance of the passage of the instant building is “the non-related person’s sign”, and the equipment or tools necessary for the operation of stables are scattered around the above passage from the said building to the stable, and the victim’s act of removing excreta at the entrance and exit of the said building without permission from the victim. The victim was not only aware that the Defendants continued to have entered the above entrance and exit of the said building for the purpose of preventing the Defendants from entering the said entrance and exit of the instant stable, but also the Defendants were also aware of the fact that the Defendants’ act of removing excreta from the entrance and exit of the said building to the front entrance and exit of the said building without permission from the victim.

3. However, we cannot agree with the above judgment of the court below.

원심판결의 이유 및 기록에 의하면, 이 사건 시설은 과천시 갈현동 마을 입구에서 과천·인덕원 방향으로 난 차량 통행이 빈번한 도로에 바로 접하여서 자리하고 있고, 위 주거건물은 위 도로에 면하여 그로부터 직접 출입할 수 있는 사실, 위 도로에서 이 사건 시설로 들어가는 입구 등에 그 출입을 통제하는 문이나 담 기타 인적·물적 설비가 전혀 없고 시멘트 포장이 된 노폭 5m 정도의 통로를 통하여 누구나 통상의 보행으로 자유롭게 드나들 수 있고, 이는 이 사건 축사 앞 공터에 이르기까지 다를 바 없는 사실, 이 사건 시설은 그 입구를 제외하면 야트막한 언덕의 숲으로 둘러싸인 형상이기는 하나 그 주위로 담이나 철망 등이 설치되어 있지 아니하고 위 도로로부터 그 언덕을 끼고 축사건물 뒤쪽으로 오르는 오솔길이 있고 이를 통하여 축사건물 맞은편의 비닐하우스 앞으로 들어올 수 있는 사실, 피고인들이 차를 타고 들어간 통로 입구 오른쪽의 전주 아래편에 ‘관계자 외 출입금지’라는 팻말이 있지만, 그 바로 뒤에 ‘ ○○ 축산’이라는 커다란 간판이 붙어 있는 비닐하우스가 있어서 이 팻말로써는 위 비닐하우스 외에도 이 사건 시설이나 통로 등 전체에 대하여 외부인의 출입이 제한된다는 점이 일반인의 입장에서 쉽사리 알 수 있다고 보기 어려운 사실을 인정할 수 있다.

In light of the above legal principles, it cannot be readily concluded that there is reasonable doubt as to the Defendants’ passage through which the Defendants got off from the vehicle or the front of the stable constitutes the above summary, which is the object of the crime of intrusion upon residence. The circumstances required by the court below are generally related to the economic interest of the victim with respect to the instant facilities and passages, etc. or the developments leading to the instant entry, etc., and it cannot be said that the circumstances clearly indicate that the entry of the outside person with respect to the above passage, etc. is objectively restricted, and thus, it cannot be said that the above passage, etc. is hot in determining whether it is objectively restricted.

Nevertheless, the judgment of the court below which judged that the above passage and the front passage constituted the above summary of the residential building or stable of this case and that the defendants' act constitutes a residential intrusion, is erroneous in the misapprehension of legal principles as to the object of the crime of intrusion upon residence or by recognizing facts against the principle of free evaluation of evidence, which affected the conclusion of the judgment. The purport of the appeal pointing this out is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)