Whether the crime of intrusion upon residence is established in cases where a person without the source of possessory right intrudes into a structure occupied by him/her (affirmative)

Article 319 of the Criminal Act

Supreme Court Decision 83Do1429 delivered on April 24, 1984 (Gong1984, 944) Supreme Court Decision 87Do1760 Delivered on November 10, 1987 (Gong1988, 124)

Defendant 1 and four others

Defendants

Law Firm Dasan, Attorneys Kim Dong-dong et al.

Seoul High Court Decision 2005No1623 delivered on April 25, 2006

All appeals are dismissed.

We examine the grounds of appeal.

1. As to Defendant 1 and Defendant 5’s grounds of appeal

In relation to co-offenders who jointly process two or more persons in a crime, the conspiracy does not require any legal punishment, but is only a combination of two or more persons to jointly process a crime and realize the crime. Even if there was no process of the whole conspiracy, if the combination of doctors is achieved in a successive or implicit manner between several persons, a conspiracy relationship is established, and even if there was no direct participation in the act of the execution, a person who did not directly participate in the act of the conspiracy is criminal liability as a co-principal against the other's act (see Supreme Court Decision 2002Do6103, Jan. 24, 2003).

The court below acknowledged the facts and circumstances as stated in its decision after comprehensively taking account of the adopted evidence, and judged that the above defendants, who were involved in the assembly led in the assembly as stated in its decision, had dolusent intent to recognize the physical collision with the police who prevented them from entering the company immediately after the assembly and the injury caused thereby, and that there was a liaison with those who directly committed such violence in order or implied intent to allow the occurrence of such a result. In light of the above legal principles and records, the court below's selection of evidence, fact-finding and decision in the court below's decision are just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the establishment of a public recruitment relation or misunderstanding of facts due to violation of the rules of evidence

2. As to the ground of appeal on Defendant 2 and Defendant 4’s intrusion on the structure

Since the crime of intrusion upon residence is de facto protected as a legal interest to protect the peace of residence, the issue of whether a person who has a residence or a guard has a right to live in a building, etc. does not depend on the establishment of a crime, and even if a person who has no right to possess it is an possession, the peace of residence should be protected. Thus, if a right holder intrudes on a building, etc. without following the procedure prescribed by the Act, the crime of intrusion upon residence is established (see Supreme Court Decisions 82Do1363, Mar. 8, 1983; 87Do1760, Nov. 10, 1987, etc.).

In light of the aforementioned legal principles and records, the court below acknowledged that the above defendants were forced to enter sons managed by the former foundation on July 15, 2002 and May 28, 2003, and acknowledged that the former foundation did not have legal authority to manage sons while preventing the above joint countermeasure committee from entering the above joint countermeasure committee, on the premise that the actual peace in this case is also included in the protected legal interest of the crime of intrusion upon the building, and that the defendants did not have legal authority to manage mutes in the above joint countermeasure committee, and that the above defendants did not have legal authority to manage mutes in the situation where the former foundation actually violated the legal interest of the crime of intrusion upon the building's entry in the process of entering the above joint countermeasure committee. Thus, the court below erred in the misapprehension of legal principles and the legal principles as to the crime of intrusion upon the building's entry into the foundation by physically suppressing the foundation without following legitimate procedures to exclude possession in the process of entering the foundation. Thus, the court below's decision did not err in the misapprehension of legal principles.

The above Defendants’ assertion of legitimate acts is a new argument that was raised only in the first instance, and cannot be deemed a legitimate ground of appeal, and the above Defendants’ act cannot be deemed an act of assertion on the record. Therefore, there is no violation of law by misapprehending the legal principles as to grounds for rejection of illegality, as otherwise alleged in the ground of appeal.

3. As to the ground of appeal on Defendant 2’s injury and the point of an unlawful assembly, and Defendant 4’s illegal assembly

In light of the adopted evidence, the court below acknowledged that the above defendants participated in the process of entering the deaf-mute on July 15, 2002 and May 28, 2003, and each assembly in the judgment was accompanied by the entrance process and can be seen as participating in the above joint countermeasure committee that actually led by the above defendants, and the above defendants suffered an injury by the deaf-mute by the defense team mobilized by the above defendants during the entrance process on May 28, 2003. Accordingly, the court below held that the facts of the crime can be established according to the judgment. The court below's decision is just and acceptable, and there is no error of law such as misconception of facts due to the violation of the rules of evidence, as argued in the Grounds for Appeal.

4. As to Defendant 3’s ground of appeal

According to the records, it is clear that only the prosecutor appealed the judgment of the first instance against Defendant 3 on the ground of unfair sentencing and Defendant 3 did not appeal. In such a case, the above defendant cannot appeal the grounds for appeal against the judgment of the court below, such as incomplete deliberation, violation of the rules of evidence, mistake of facts, or misapprehension of legal principles, and even if examining the records, the judgment of the court below convicting Defendant 3 is just, and there is no error as alleged in the grounds for appeal.

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)