CONTENTS
- 1. Intrusion upon Habitation, the Detailed Circumstances
- - Intrusion upon Habitation, the Relevant Statutes and Precedents
- 2. Intrusion upon Habitation, the Lower Courts' Determination
- 3. Intrusion upon Habitation, the Supreme Court's Determination
- 4. Intrusion upon Habitation, Daeryun's Strategy
1. Intrusion upon Habitation, the Detailed Circumstances
The circumstances of A, the defendant indicted for intrusion upon habitation, are as follows.
In 2022, A entered a villa building in Seoul. A was neither a resident of the villa nor an acquaintance or family member of any resident of the villa.
After opening the villa door and going inside, A headed to the stairs on the fifth floor. Immediately upon arriving, A inhaled industrial adhesive that A had brought along, right there on the spot.
Having fallen into a hallucinatory state, A swore to himself, laughed, and even made muttering sounds.
A villa resident who heard this reported it to the police, and A was arrested as an offender caught in the act.
Intrusion upon Habitation, the Relevant Statutes and Precedents
📌 Relevant Statutes
Article 319 of the Criminal Act (Intrusion upon Habitation, Refusal to Leave)
(1) A person who intrudes upon another person's residence, managed building, vessel or aircraft, or occupied room shall be punished by imprisonment for not more than three years or by a fine not exceeding five million won.
(2) A person who, having received a demand to leave the place referred to in the preceding paragraph, fails to comply shall be subject to the same punishment as provided in the preceding paragraph.
📌 Relevant Precedents
"Common areas such as the elevator, common staircase, and corridors inside multi-family detached houses or multi-household housing, row houses, apartments, and other multi-unit housing also require protection of the residents' de facto peace of habitation, and therefore constitute a 'person's residence,' which is the object of the crime of intrusion upon habitation." (See Supreme Court, Decision of September 10, 2009, 2009 Do 4335, among others)
"In determining whether an outsider who is not a resident entering the common areas of multi-unit housing constitutes intrusion upon habitation against the residents of that housing, the determination must also be made objectively and externally from the perspective of 'whether the de facto state of peace of habitation has been infringed,' taking comprehensive account of circumstances such as whether the common area is not a space open to the general public but a part essentially appurtenant to the exclusively owned portion of each household or unit used as a residence, for which control and management of outsiders' entry by the residents or the manager is anticipated, so that there is a need to protect the residents' de facto peace of habitation; whether the residents or manager of the multi-unit housing ordinarily controlled and managed the entry of outsiders into that place; as well as the purpose and circumstances of the outsider's entry, the manner of entry, and the time of entry." (See Supreme Court, Decision of January 27, 2022, 2021 Do 15507; Supreme Court, Decision of August 25, 2022, 2022 Do 3801, among others)
2. Intrusion upon Habitation, the Lower Courts' Determination
As to A, who was charged with intrusion upon habitation and other offenses, the court of first instance imposed an actual custodial sentence.
It found that the act of entering the villa and inhaling adhesive constituted "intrusion upon habitation."
The appellate court's determination, however, was different.
It found that the villa's common entrance had no separate locking device, that no CCTV had been installed, and that there was no sign prohibiting entry by outsiders.
The appellate court also pointed out that, because there was no separate building manager either, it had not been sufficiently proven that, in the case of this villa, the residents controlled or managed the unauthorized entry of outsiders.
It added that, in A's case, he merely entered the building by ordinary means, and in the course of entering, he did not appear to have engaged in conduct that disturbed the residents' state of peace.
It then explained that circumstances such as the smell of adhesive spreading around the common staircase as A inhaled the adhesive resulted from other conduct by A after he had entered the building.
3. Intrusion upon Habitation, the Supreme Court's Determination
The Supreme Court's determination on the crime of intrusion upon habitation was different yet again.
The Supreme Court first addressed the structure of the villa building in question.
It determined that this villa was small in scale, with eight households residing there, and that the villa's common entrance, common staircase, and the space in front of each household's entrance door, being places through which the residents enter their respective living spaces, should be regarded as spaces essentially belonging to the exclusively owned portion of each household.
It also found that, given the nature of the building, the common space itself was not large and there was no elevator, so the likelihood that a situation occurring in the common space would affect the independent living space of each household was greater than in other multi-unit housing.
Taking these circumstances together, the Supreme Court rebutted the appellate court's determination, holding that it was more appropriate to view the residents as, on the contrary, feeling all the more keenly the need to protect their state of peace by controlling and managing the possibility of outsiders entering without reason.
It pointed out, however, that A entered the villa's common space while looking for a suitable place solely for the purpose of inhaling adhesive, and that this could be regarded as conduct clearly contrary to the will of the building's residents.
It added that A's conduct, such as muttering curses to himself while intoxicated by the adhesive, was sufficient to give rise to anxiety among the residents.
It explained that, because the lower judgment erred by misapprehending the legal principles of the crime of intrusion upon habitation in a way that affected the judgment, the prosecutor's final appeal had merit.
4. Intrusion upon Habitation, Daeryun's Strategy
The crime of intrusion upon habitation is an offense that breaks the peace of the residence enjoyed by an individual, and it refers to the act of intruding, without justifiable reason, upon another person's residence, vessel, aircraft, or the like.
When people hear "intrusion upon habitation," many likely picture a situation of entering a building by roughly damaging its facilities for the purpose of stealing property or harming a particular person.
The scope in which intrusion upon habitation is recognized, however, is far broader than one might think.
As in the case above, even if a person quietly enters a building without any act of damage, that person becomes subject to criminal punishment if the conduct carried out inside the building is an act that breaks the residents' "peace."
In addition, the act of inserting part of one's body into another person's living space can likewise be punished as the crime of intrusion upon habitation.
In other words, acts done in everyday life without much thought, or acts done in a moment of uncontrolled anger, can all amount to the crime of intrusion upon habitation.
If you have become involved in a case of intrusion upon habitation, you should promptly obtain the assistance of a defense team and respond.
Daeryun Law Firm LLP, with a defense team experienced in a wide range of criminal trials, provides systematic assistance to its clients.
If you have any inquiries regarding various criminal cases, including intrusion upon habitation, you are welcome to request a 🔗consultation with Daeryun Law Firm LLP at any time.
