Disposition and Imputation of Inalienable Legal Interest

Abstract

The Supreme Court is always consistent in that the protective legal interest of the crime of intrusion on housing is “de facto peace” However, when there are several people living in the same space, only the establishment of the crime has been analyzed, and the number of crimes has not been discussed. If there are a few of people who belong to the exclusive legal interest, it is impossible to share or transfer the legal interest as well as to succeed due to the possibility of transfer of the legal interest. Therefore, if there are several people living in the shared house, the protection legal interests must be recognized as overlapping as the number of residents. At this time, it should be understood that the infringement of protective legal interests due to a single act of invasion of housing exists as much as the number of residents. In this case, if conceptual concurrence is recognized, there is a concern of excessive evaluation of illegality, so here, would like to admit inclusive crime. If the actor recognizes that some of the inaliennable legal interests agree and some explicitly reject them, the actor violates the legal interests of the deniers because there is an intention to invade the rejected people. Therefore, the crime is not established because the constituent requirements are understood and the applicability of the constituent requirements is carved, but the crime of some of the inclusive crime does not affect the establishment of the inclusive crime for the rejected. In other words, the crime of housebreaking is established. However, if an actor who does not know the internal circumstances between people sharing the space enters with some consent, actor does not recognize the disagreement of others, so the intention cannot be established for the legal interest, and as a result, there is no intention of housing invasion for those who disagree. In addition, due to the nature of the intrusion act, the presence of the actor's intention depends on the ‘recognition’ of consent by the resident unless it is abnormal access, and that is the situation at the site facing the actor. Through such arguments, here, if there are several people with the legal interest of de facto peace in the shared space, the establishment of the crime of house intrusion was resolved as inclusive crime. Although there are some deficiencies in the logical outcome process, this is also a task to be solved in the future in the process of argumentation.