Change of Precedents Regarding the Crime of Intrusion upon Habitation

Change of Precedents Regarding the Crime of Intrusion upon Habitation

Abstract

Recently, the Supreme Court made a significant change in its point of view regarding the crime of intrusion upon habitation. In a recent case where a man entered a couple’s house with the approval of a wife to have extramarital intercourse with her, and in a case where a man entered a public place for an illegal purpose, the Supreme Court found the accused innocent. In contrast, intruders were found guilty of the crime of intrusion upon habitation in similar cases in the past. The above two precedents (2020Do12630 and 2017Do18272) established a new principle of law: it is hard to regard an act as intrusion only by a subjective circumstance that the act of entering is against the will of the inhabitant. The intention of the inhabitant is only one of the factors in admitting the occurrence of an intrusion. Instead, it is a principle to judge whether it is an intrusion based on the shape of action revealed objectively and outwardly at the time of entry. Entering a place in the usual way does not break the de facto tranquility of habitation.

. Introduction

The Criminal Act punishes a person who intrudes upon a one’s residence, guarded building, structure or ship or occupied room and a person who refuses to leave such a place upon demand (Article 319). According to Article 2.2. of the Punishment of Violences, etc. Act, if two or more persons jointly commit such crime, punishment shall be aggravated by up to 1/2. Article 12 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes punishes a person who intrudes upon any publicly used place used by many and unspecified people including a toilette, public bath, bathroom, sweating room, breast-feeding facilities, and dressing room, or who refuses to leave such a place upon demand, with intent to satisfy his/her own sexual urges.

The above articles aim to protect the de facto tranquility of the people who control the residence or building, etc[1].. Therefore, whether the intruder broke the tranquil condition is a vital issue in pleading guilty to intrusion upon habitation. Recently, the Supreme Court changed its perspective about the criteria for breaking the de facto serenity of residence and the definition of ‘intrusion’ regarding the crime of intrusion upon habitation. This article intends to introduce the modified stance of the Supreme Court by contrasting the previous and recent precedents and state an opinion about the change.

 

Ⅱ. In the Case of Cohabitation

  1. Former View of the Supreme Court

In the case of cohabitation, it is often called into question whether it is an intrusion or not if a person enters the residence with the consent of one of the dwellers. The most typical case is of a man who entered a couple’s house with a wife’s permission for an extramarital affair. In 1984, the Supreme Court stated that this constitutes an intrusion upon habitation toward the husband (83Do685) :

Ga. … In a case where multiple persons hold the right of habitation, if one person’s approval goes directly or indirectly against another person’s will, entering the residence by such consent breaks the person’s tranquility of dwelling: the right to dominate and manage the occupancy. Accordingly, it constitutes the crime of intrusion upon habitation.

Na. Even when one of the cohabiters is absent, the above principle of law will not be affected as long the control and management relationship of the habitation is acknowledged by appearance. Thus, even if the accused entered the dwelling for adultery with the wife’s permission when her spouse is temporarily absent, the husband’s control and management relationship of the habitation still exists. According to social norms, entering a house for adultery seems to go against the spouse’s will. Therefore, the offender violated the husband’s tranquility of habitation despite the wife’s approval, and in this case, the intruder is found guilty of the crime of intrusion upon habitation.

Its central argument is that the expressed or presumed will of the person who owns the place should be the key criterion in deciding whether the accused intruded. If the accused entered the place against the expressed or presumed intention of the owner, it is acknowledgeable that the accused broke the de facto tranquility of habitation.

  1. Change of View

On September 9th, 2021, the Supreme Court en banc decision changed its view and found the accused innocent in a similar case (2020Do12630) :

When a visitor enters a co-living place in the usual way with substantive approval of an existing inhabitant when some of his cohabitants are absent, this does not constitute the crime of intrusion upon habitation even if it goes against the presumed will of other occupants. The specific reasons are as follows.

(Ga) … In the case of cohabitation, it is inevitable that the de facto tranquility of habitation is limited to a certain degree due to the relationship among inhabitants, and we should say that the cohabiters accepted this situation when forming the relationship. … Even if a cohabiter is absent, entering a habitation in a manner that breaks the de facto tranquility or entering a space where he uses alone can result in a loss of de facto tranquility of abode. However, if the accused entered in an ordinary way with the approval of the resident who is present in the residence, it is hard to say that he broke the de facto tranquility, which is the benefit and protection of the crime of intrusion upon habitation, although it is presumed that it goes against the will of the absent cohabiters. …

(Na) Intrusion, a constituent act of the crime of intrusion upon habitation, must be interpreted in relation to the benefit and protection of the law. Therefore, an intrusion means ‘entering a habitation in a manner that breaks the de facto tranquility of the inhabitant.’ It is a principle to judge whether it is an intrusion based on the shape of action revealed objectively and outwardly at the time of entry. If the accused entered in the manner of breaking the de facto tranquility, it would generally be against the will of the inhabitant. Still, we cannot judge it as intrusion only by a subjective condition that the act of entering is against the will of the inhabitant.

The Supreme Court maintains its former perspective that the crime of intrusion upon habitation aims to protect the de facto tranquility of habitation and that the infringement of serenity counts as an intrusion. Nevertheless, it changes its previous stance, which states that the act of entering against the will of inhabitants decides if it is an intrusion or not. Instead, the Supreme Court emphasizes looking closely at the shape of the action to determine whether the offender breaks the de facto tranquility.

 

Ⅲ. Entering a Public Place for Criminal Purposes

  1. Former View of the Supreme Court

In 1992, the then Minister of Justice Gi-Chun Kim called government agency chiefs together and incited regionalism so that Young-Sam Kim could win the presidential election. The supporters of the opposing party revealed the incident by installing a bugging device beforehand in a puffer fish soup restaurant called Cho-Won Bokguk, where Gi-Chun Kim and government agency chiefs gathered. As a result, this case was named after the restaurant, “Cho-Won Bokguk case.” The ones who recorded the conversation were prosecuted for the crime of intrusion upon habitation. Back then, the Supreme Court declared them guilty (95Do2674):

Even if it is a restaurant where the general public is allowed to enter, entering it against the owner’s expressed or presumed will constitutes a crime of intrusion upon habitation. Therefore, when entering the restaurant to install a bugging device to eavesdrop on the conversation at the breakfast meeting of government agency chiefs, it is experientially assumable that the business owner would not have allowed the entrance. Hence, such an act constitutes a crime of intrusion upon habitation.

In this precedent, we can notice that the Supreme Court uses the will of the inhabitant as a critical criterion in deciding whether the accused violated the tranquility of habitation.

  1. Change of View

On March 24th, 2022, the Supreme Court en banc changed its view on the criteria of admitting intrusion 25 years after the Cho-Won Bokguk case decision(2017Do18272):

The crime of intrusion upon habitation aims to protect the de facto tranquility of habitation. Since intrusion -a constituent act of the crime of intrusion upon habitation- must be interpreted concerning the benefit and protection of the law, intrusion means entering a place to break the de facto tranquility of habitation. It is a principle to judge whether it is an intrusion based on the shape of action revealed objectively and outwardly at the time of entry. If the accused entered in the manner of breaking the de facto tranquility, it would generally be against the will of the inhabitant. Still, we cannot regard it as intrusion only by a mere subjective circumstance that the act of entering is against the intention of the inhabitant. Whether it is against the will of the inhabitant is one of the factors to consider when evaluating whether the act harms the state of tranquility. However, it cannot be the main evaluation factor. Therefore, whether it is an act of intrusion should be judged based on an action that harms the state of de facto tranquility, not on the will of the inhabitant.…

Now the will of the inhabitant is only one factor in admitting the occurrence of an intrusion. In this point of view, to enter a restaurant, which is open to the public, in the usual way does not break the de facto tranquility and thus does not constitute the crime of intrusion upon habitation.

 

Ⅳ. The Key Point of the Change

  1. Principle of Law that the New Precedents State in Common

According to the latter precedents, the benefit and protection of the law is still the de facto tranquility of habitation, and the infringement of this tranquil condition is a criterion for determining whether an intrusion occurred. However, the two precedents established a new principle of law :

(1) We cannot regard it as intrusion only by a mere subjective circumstance that the act of entering is against the will of the inhabitant. The will of the inhabitant is only one of the factors in admitting the occurrence of an intrusion.

(2) Instead, it is a principle to judge whether it is an intrusion based on the shape of action revealed objectively and outwardly at the time of entry.

(3) Entering a place in the usual way does not break the de facto tranquility of habitation.

  1. Reason for the Change

Several theories about the meaning of an intrusion exist, and the former view of the Supreme Court seemed to support the ‘invasion of will’ theory. Now it seems to support the ‘entering in the manner of breaking the tranquility’ theory.[2] The Supreme Court provides a specific reason to explain their change in the point of view through 2020Do12630 :

… If the crime of intrusion upon habitation is acknowledged only by a mere circumstance of entering against the intent of an absent inhabitant even though the visitor entered in the usual way with another dweller’s permission, this goes beyond the benefit and protection of the law, because it means the crime is classified as that of invading the freedom of will. Furthermore, the content of ‘invasion of tranquility’ will become subjective and abstract, and whether to acknowledge the crime of intrusion upon habitation will depend on the presumed mind of the absent inhabitant. Thus it is difficult to judge the act of offense, and the punishment might overextend, causing unfair results.

 

Ⅴ. Conclusion

The Supreme Court’s significant change of viewpoint has impacted and will considerably impact the precedents regarding the crime of intrusion upon habitation. Unlike previous precedents, which expressed their argument indirectly, the new precedents explicitly use the term ‘main evaluation factor’ when presenting ‘the shape of action’ as a criterion for intrusion. Until now, when the Supreme Court judges based on the intent of inhabitants, the crime of intrusion of habitation was brought up in overmuch irrelevant cases. In this sense, the modified viewpoint seems reasonable in that it confirmed once again that the benefit and protection of the crime of intrusion upon habitation is the de facto tranquility of habitation.

 

 

Works Cited

85Do122.

https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=176729 (last visited July 2022).

 

 

[1] 85Do122.

[2] https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=176729 (last visited July 2022).

 

angei2480@naver.com

Posted in Autumn 2022.