Unauthorized Intrusion upon Habitation | A Case Leading to Non-Referral on a Charge of Special Intrusion upon Habitation

Unauthorized intrusion upon habitation refers to the act of intruding without permission into another person’s residential space or into a building, vessel, aircraft, or the like that another person manages.

Simply put, the act of entering, without permission, a space in which privacy must be guaranteed, such as another person’s home or office, is precisely unauthorized intrusion upon habitation.

It is established by the act of entering alone, and where it is combined with other crimes such as theft or assault, aggravated punishment may be imposed.

Representative types of unauthorized intrusion upon habitation

-Where a person enters the home of a former spouse without consent

-Where a tenant, even after the lease has terminated, does not vacate the home and occupies it without authorization

-Where a person enters a friend’s home through a window without permission

▶Unauthorized entry into the common areas of a multi-unit dwelling also constitutes the crime of intrusion upon habitation (Supreme Court Decision 2023Do15164, decided February 15, 2024)

The Supreme Court held that the elevators, common stairways, and corridors of a multi-unit dwelling are spaces closely connected to the residents’ daily lives and should be protected as, in effect, an extended residential space.

Accordingly, it ruled that where an outsider enters without authorization, the crime of intrusion upon habitation may be established.

In this case, the defendant repeatedly visited, at night, the area right in front of the entrance of his former girlfriend’s home and engaged in conduct that caused her anxiety.

Although there was no separate door lock at the villa’s common entrance, access by outsiders was controlled and managed through the installation of CCTV and notice signs, and therefore the court determined that the defendant’s entry constituted an act that disturbed the residents’ de facto peace of habitation.

Accordingly, holding that the lower court had erred in finding the defendant not guilty, the Supreme Court acknowledged the possibility that the crime of intrusion upon habitation was established.

Issues:

Do common areas also constitute a residence?

→ The stairways, corridors, and the like of a multi-unit dwelling have, in effect, a need to protect the residents’ peace of habitation, and therefore they are included within the protected object of the crime of intrusion upon habitation.

What significance does the residents’ ‘being against their will’ have for the establishment of intrusion?

→ Being against their will does not, in itself, automatically constitute intrusion, but it becomes an important factor to consider when determining whether the peace of habitation has been disturbed.

Criteria for judging a specific case

-The purpose, circumstances, and time of entry

-The structure of the building and the method of access control

-The relationship between the defendant and the victim

-Whether, under generally accepted social norms, the peace of habitation has been infringed

Q. Does entering the home of a family member or acquaintance also constitute intrusion upon habitation?

A. It can.

Even in the case of family, friends, or a partner, if a person enters without the resident’s consent, the crime of intrusion upon habitation may be established.

In fact, there have been cases in which a former partner who entered an ex-partner’s home without consent was punished.

Q. I have been charged with unauthorized intrusion upon habitation, but if I did not actually enter, what should I do?

A. You can contest whether the intrusion actually occurred through evidence (access records, CCTV, witness statements, and the like).

Q. I opened the door to let the other person into my home, but could this become a problem later?

A. Even if consent was given at first, if the resident subsequently clearly expressed an intention to refuse and the person nonetheless continued to stay, the crime of refusal to leave may be established.

The attorney in charge first rebutted the allegation that the client had been carrying a dangerous object.

The neighborhood where the client lives is a remote rural area, and there are many animals with their leashes loose in the neighborhood.

In fact, the client had previously been bitten by a dog whose leash had come loose, and so he always carried a wooden club for self-defense.

On the day of the incident as well, he had been carrying a wooden club for self-defense.

The attorney in charge argued that the client had consistently stated that he had always carried a wooden club for self-defense when going out.

The attorney in charge argued that the allegation that the client had opened the window of the victim’s residence and inserted his face and half of his body through it was not true.

This was because the client did not enter the victim’s home and went only as far as the garden near the victim’s home.

In addition, the window of the victim’s home was fitted with bars, and in order for the client to intrude through the window without authorization, he would have had to remove or damage the bars.

However, the client did not possess any tool for removing or damaging the bars, and there was no trace whatsoever of the bars having been damaged.

Through such arguments, the attorney in charge emphasized that the client had not actually intruded.

▶Relevant precedent: Daejeon High Court Decision 2002No114, decided May 31, 2002

Even if the defendant opened the window slightly in order to peek inside the victim’s home, because the defendant at the time did not possess any tool for removing or damaging the bars installed on the window, it was practically impossible to intrude into the home.

Furthermore, if the defendant had made no attempt whatsoever to remove the bars, it cannot be found that the defendant at the time had an awareness of intrusion upon habitation merely on the ground that the defendant opened the window and tried to peek inside the home.