[1] Whether a multi-household detached house or a public stairs and corridor inside a multi-family housing constitutes a "resident of a person", which is the object of the crime of intrusion upon residence (affirmative)

[2] The case reversing the judgment of the court below that the crime of intrusion was not constituted in the case where a multi-household gate, a multi-household gate, opened and opened a multi-household gate, and sublet 3 to a multi-household gate was cut down on the first floor

[1] In the crime of intrusion upon residence, housing does not merely refer to a house itself, but includes the above summary such as the fixed number of houses. Therefore, stairs and corridors used for public use in multi-family housing such as multi-households, multi-household houses, apartment houses, and apartment houses are necessarily annexed to the exclusive part of each household or household used as a residence, and there is a need for the residents to monitor and manage in their daily lives and to protect the peace of de facto residence. Thus, barring special circumstances, it constitutes “human residence” which is the object of the crime of intrusion upon residence.

[2] The case reversing the judgment of the court below which did not constitute a crime of intrusion upon residence on the ground that the act of entering a residential stairs is deemed to have infringed upon the residence, in case where the act of entering a multi-household house, a multi-household house, opened a locked gate and going up to 3th floor in a public stairs, and turned down to 1st floor

[1] Article 319(1) of the Criminal Act / [2] Article 319(1) of the Criminal Act

[1] Supreme Court Decision 82Do1363 delivered on March 8, 1983 (Gong1983, 677) Supreme Court Decision 2001Do1092 delivered on April 24, 2001 (Gong2001Sang, 1303)

Defendant

Prosecutor

Seoul Western District Court Decision 2009No92 Decided April 9, 2009

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

The grounds of appeal are examined.

1. As to the part that intrudes upon a residence by breaking the gas pipeline

According to the reasoning of the judgment below, the court below did not dismiss the non-indicted witness's statement in the court of first instance without credibility, but rather found the above non-indicted witness's statement more reliable than his statement in the investigation agency. In light of the above non-indicted's statement, the court below acquitted the above part of the facts charged that "the defendant left the gas pipeline installed on the right side of the right side of the court of first instance and let the above floor window above the upper floor." In light of the records, the court below's judgment is just and there is no violation of the incomplete trial or the principle of direct examination as alleged in the grounds of appeal.

2. As to the part that intrudes upon a house by opening a gate and admitting it into stairs

In the crime of intrusion upon residence, housing does not merely refer to a house itself, but includes the above summary, such as the fixed number of houses (see Supreme Court Decisions 82Do1363, Mar. 8, 1983; 2001Do1092, Apr. 24, 2001, etc.). The stairs and corridors used for public use in multi-household houses, multi-household houses, multi-household houses, apartment houses, and apartment houses, etc. are essential parts of each household or household used as a residence, and there is a need for the residents to monitor and manage the house in their daily lives and to protect the peace of residence. Thus, public stairs and corridors inside multi-household houses or multi-family housing should be deemed as housing of a person, which is the object of the crime of intrusion upon residence, unless there are special circumstances.

Of the facts charged in this case, the summary of the part of the above residential intrusion was that the defendant opened the gate of the Ba (multi-household detached house) in which the victim lives together with his accomplice, and opened the 3th floor of the above gate with the stairs, and the 1st floor infringed upon the victim's residence.

According to the reasoning of the judgment below, the court below found the defendant not guilty of the above part of the facts charged on the ground that the defendant opened a gate which was not corrected in the above Ba, opened up the 3th floor of the above Bara, opened up the door of the 3th floor of the Bara in the stairs, and opened the door of the Dora, and then returned again to the 1st floor. The defendant's act alone cannot be deemed to have commenced a specific act for intrusion or committed an act that includes an objective risk that may infringe

However, in light of the above legal principles, as long as the defendant opens and enters the gate of the above gate, which is a multi-household house, and enters the gate of the above gate, the defendant's act of entering the gate of the above gate is deemed to have infringed upon the residence if it is against the residents' will. Nevertheless, the court below's decision that the defendant's act does not constitute a crime of intrusion upon residence without examining whether the act of entering the gate of the multi-household house does not constitute a house or not, and there is an error of law by misunderstanding legal principles as to the meaning of residence in the crime of intrusion upon residence, which affected the conclusion of the judgment, and the ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below that acquitted of the facts charged in the instant case, which is related to the above part as a single crime, shall be reversed in its entirety.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)