Busan Attorney | Busan Criminal Attorney Assists With Intrusion Charge, Non-Referral Decision

The client was a resident of the same apartment building who would often greet the victim when they ran into each other.

Then one day, the victim came to the client in tears and urgently asked to borrow about one million won, saying she had to go to the hospital.

Caught off guard, the client hesitated for a moment, then readily lent the money, thinking it would be fine since she was a resident of the same apartment building.

However, when there was no word from the victim even after the agreed period of one month had passed, the client went to the victim's home in person.

The client went inside the victim's apartment building and knocked on the front door of the unit where the victim lived.

When there was no sign of anyone, he did such things as entering the keypad code several times, and the victim stated that she then opened the door and came out.

The victim expressed her displeasure, saying the client's behavior was frightening and bewildering, but the client asked her to return the money.

During this process, the victim tried to send the client back home, but when he would not leave, she reported him to the police.

Ultimately, due to the victim's report, the client was booked on a charge of intrusion upon habitation.

The client stated that his conduct was merely an attempt to recover the money and that he had no other intent.

The legal principles regarding intrusion upon habitation under the Criminal Act are as follows.

Criminal Act Article 319 (Intrusion Upon Habitation, Refusal to Leave)
(1) A person who intrudes upon another's residence, a managed building or structure, a ship or aircraft, or an occupied room shall be punished by imprisonment for not more than three years or a fine not exceeding five million won.
(2) The same punishment shall apply to a person who, having received a demand to leave the places in the preceding paragraph, does not comply.

The client was in a situation where he refused to leave until he was promised a return of the money, even though the victim asked him to go home.

This may amount to refusal to leave, and a person who does not comply with a demand to leave may receive the same punishment as for intrusion upon habitation.

If the crime of intrusion upon habitation were established, the part concerning refusal to leave also had to be treated as important.

This was an important factor in proving that, as the client asserted, there was no criminal intent, and it called for a meticulous defense.

The Busan criminal attorney sought to assist the client by citing the following precedents as examples.

Supreme Court ruling 2021Do15507 addressed cases in which entry through a shared entrance amounts to intrusion upon habitation. If a shared entrance has controlled access through means such as keypad code entry, and a person enters without authorization and without the approval of the residents or the manager, then where it is determined, in light of the purpose, circumstances, and time of entry, that the actual peace of the residents was disturbed, the crime of intrusion upon habitation may be established. The ruling emphasized that the crime of intrusion upon habitation is especially likely to be recognized where a person attempts entry by manipulating the keypad code.

By contrast, in Daegu District Court Seobu Branch ruling 2021Gojeong600, the defendant entered without checking whether access to the apartment's shared entrance was controlled, but the security office opened the door without any particular verification, and a judgment of acquittal was issued because the defendant's entry was difficult to regard as conduct that disturbed the actual peace of the residents. In that case, the court determined that the defendant went as far as the front of the victim's home but did no more than press the doorbell once, so the resident's peace was not substantially infringed.