(a) The establishment of crimes of intrusion upon residence and the intent of such crimes;

(b) Commencement and attempted attempt of the crime of intrusion upon residence;

(c) A case which recognizes the number of occasions of intrusion upon residence in connection with the act, such as opening a window of another person's house at night and taking faces, etc.; and

A. Since the crime of intrusion upon residence is a de facto residential peace and protection of the legal interest, the crime of intrusion upon residence is not necessarily established since the whole body of an actor enters another person's residence which is the object of the crime, and even if part of the body enters another person's residence, if it reaches the degree of harm to the peace of the real residence which the resident enjoys, it shall be deemed that the crime meets the elements of crime. Therefore, the crime of intrusion upon residence does not necessarily require the awareness that the whole body enters another person's residence, but it is sufficient to recognize that a part of the body enters another person's residence.

B. In a case where a specific act was commenced with the criminal intent of Paragraph A, such as attaching a correction device entering a residence for example, or opening a door, the commencement of the crime of intrusion upon residence was deemed to have been the commencement of the crime of intrusion upon residence. In a case where a part of the body was entered into a residence but it did not reach the degree of harm to the peace of residence, the crime of intrusion upon residence was committed.

C. If the Defendant committed an act, such as opening a window of another’s house at night and taking face into the house, even if he was aware that a part of his body enters the house, the crime of intrusion upon residence is recognized. In addition, even if a part of his body enters the house, if it actually harms the peace of residence, then the crime of intrusion upon residence was committed.

(b)Paragraph 1 of Article 319 of the Criminal Code; Article 13(a) of the Criminal Code; Articles 25 and 322 of the Criminal Code;

A. Supreme Court Decision 83Do1429 delivered on April 24, 1984 (Gong1984,944) 87Do3 delivered on May 12, 1987 (Gong1987,1013) 87Do1760 delivered on November 10, 1987 (Gong1988,124)

Defendant

A co-inspector;

Daejeon High Court Decision 94No66 delivered on September 1, 1994

The non-guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the Daejeon High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below rejected the appeal by the prosecutor on the ground that the first instance court, which acquitted the defendant on the violation of the Punishment of Violence, etc. Act, on the ground that it was not erroneous in the interpretation of the crime of intrusion and the examination of evidence, or in the selection process of the examination of evidence, on September 22, 1993, on the ground that it is difficult to deem that the defendant had the awareness that he was taking the victim's room in order to establish the crime of attempted intrusion upon residence only when he was aware that the whole body was entering the object, and that he did not have the awareness or intention that he was entering the victim's room in Daejeon-gu, Daejeon-gu, Seoul-gu., the defendant's act of opening the door door and opening the face in order to rape the female from the home of the victim's room in Daejeon-gu, and there is no other evidence to acknowledge otherwise.

2. However, since the crime of intrusion upon residence is the legal interest protected by the law of peace of real residence (see Supreme Court Decisions 83Do1429, Apr. 24, 1984; 87Do1760, Nov. 10, 1987; 87Do1760, Apr. 10, 1987; 87Do260, etc.), the crime of intrusion upon residence must be deemed as satisfying the elements of crime if the whole body part of a person enters another person's residence as the object of crime, and if the whole body part of a person enters another person's residence, it can be deemed that the crime of intrusion upon residence does not necessarily require the awareness that the whole body was into another person's residence, but it does not necessarily require the awareness that a part of a person's body was into another person's residence, and if it actually intrudes upon other person's residence, it should be deemed that the crime of intrusion upon residence begins, but it does not start or interfere with the specific residence.

Therefore, if the defendant committed an act such as opening a window of another person's house at night as described in the facts charged, and taking face into the house, even if he was aware that a part of his body enters the house, the crime of intrusion upon residence is recognized, and even if a part of his body enters the house, if it actually harms the peace of residence, it shall be deemed that the crime of intrusion upon residence has been completed.

Therefore, the judgment of the court below that there was no perception or intent that the whole body enters the subject matter in order to establish the crime of attempted intrusion upon residence, and that there was no perception or intention that the defendant enters the victim's room. Thus, the judgment of the court below that there was no commencement of the crime of intrusion upon residence was erroneous in the misapprehension of legal principles as to the criminal intent and commencement of the crime of intrusion upon residence. Thus, the ground of appeal pointing this out has merit.

3. Therefore, without determining the remaining grounds of appeal, the part of the judgment of the court below which acquitted 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 judges.

Justices Park Jong-ho (Presiding Justice)