범죄목적을 숨긴 출입은 주거침입인가?

• 영문명: Enterthroughconcealingthecriminalpurposeand disturbanceofdomesticpeaceandsecurity
• 발행기관: 한국형사판례연구회
• 저자명: 최준혁(CHOI Jun-Hyouk)
• 간행물 정보: 『형사판례연구』형사판례연구 제23권, 405~429쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.06.30

영문 초록

The offense of disturbance of domestic peace and security (trespass) has a not inconsiderable amount of theoretical problems that deserve a closer look. Among them is the following case, whether the enter through concealing the criminal purpose must be punished with trespassing. Previously the supreme Court of Korea affirmed on this issue with the grounds that penetrate is against the true (hypothetical) will of the injured. But the solution of supreme court is not without problems. Penetrate is entering the protected space against the will of owner or others who have the right of possession. So if the owner approves entering, there is a priori no ‘penetrate’ and therefore no trespassing. The consent of the owner is basically also effective even if it was fraudulently by mere deception. The intent of the perpetrator in the house to commit a crime (for example theft) is not critical because it is not recognizable to outsiders. This view is substantiated by a case study: Through deception of his purpose A can go into another house with consent of owner. After A’s criminal plan this first visit is only for identification of the object of the crime. He wants to commit theft at the next visit, if only there is nobody in the house. In my opinion, A can not be punished as the offense of trespass.

목차

Ⅰ. 대상판결의 소개

Ⅱ. 판례의 의미

Ⅲ. 주거침입죄의 보호법익

Ⅳ. 범죄목적의 주거침입

Ⅴ. 맺으며

키워드

주거침입 범죄목적 주거권 사실상 평온 disturbance of domestic peace and security (trespass) criminal purpose theory of residental right theory of actual peace hypothetical wi