Substantive Danger in Incitement to Insurrection, Intrusion upon a Shared Residence, and Medical Self-Determination: Constituent Elements in Three Supreme Court Judgments on Serious Crimes

Question

Three judgments are used to examine the requirements of substantive danger and agreement in incitement to insurrection and conspiracy to commit insurrection, the boundaries of the crime of intrusion upon a residence that disturbs the de facto peace of a shared residence, and the criteria for occupational negligence resulting in death in surgery on a patient who refused blood transfusion.

The first issue is the question addressed in Judgment 2014Do10978, namely: "Does advocating the destruction of key national infrastructure in an emergency at a meeting of some 130 people constitute incitement to insurrection and conspiracy to commit insurrection?" The second issue is the question addressed in Judgment 2020Do6085: "Is the crime of intrusion upon a residence committed by a spouse and the spouse's parents who tore off a door chain and entered a shared marital residence from which they had been shut out?"

The third issue is the question addressed in Judgment 2009Do14407: "Where the 62-year-old deceased, who had refused blood transfusion, died of excessive bleeding, can the defendant be held liable for occupational negligence resulting in death?" All three judgments ask how the boundaries of the statutory wording and the substantive factors for determination are to be distinguished on the record.

Material to check

First (2014Do10978), this decision addresses whether conduct advocating a riot, including the destruction of national core infrastructure in the event of an emergency, at two gatherings of some 130 persons constitutes incitement to insurrection and conspiracy to commit insurrection. To verify the admissibility of the conversation recording files on the record, one must look to the original recording files and the records containing the date and place of the gatherings and the content of the statements. Where copies were submitted, one must examine whether it was proved that they were copied exactly as the originals without artificial alteration, and confirm together the statements of persons involved in the generation, transmission, and storage procedures, hash value comparison materials, and the results of verification and expert examination.

Second (2020Do6085), this decision addresses whether the crime of trespass on habitation occurs where a co-resident prohibits the entry of another co-resident, and where an outsider enters accompanying one. To verify on the record whether entry was prohibited and the circumstances thereof, one must look to residence records showing whether the joint living relationship in the apartment was maintained and to statements and on-site records concerning the demand to open the door and the refusal. At this point, in accordance with the legal principle that "as between co-residents, unless there are special circumstances, one co-resident may not prohibit another co-resident from freely entering and using the place of joint living," one determines whether there was a legal ground or other justifiable reason for the prohibition, and also examines the records showing the circumstances of the damage to the latch.

Third (2009Do14407), this decision addresses the matters a physician must consider in treatment and the criteria for evaluating the right to self-determination where, on the premise of an explicit intention to refuse blood transfusion, surgery is performed with consent and an emergency state arises. To verify the validity of the exercise of the right to self-determination on the record, one must look to the medical records and the consent form containing the explanation of the necessity and risks of transfusion and of the efficacy and limitations of alternative methods. One examines together the process of a serious decision after understanding the explanation, whether circumstances arose within the anticipated range, and the records of reconfirming the intention to withdraw in the actual situation.

Possible readings

In Case 2014Do10978, the majority opinion and the dissenting opinion were divided over whether incitement to insurrection requires a specific presentation of the main content of the act of execution, such as timing, place, targets, method and division of roles, and even a probability of execution; the two sides were likewise divided over whether conspiracy to commit insurrection requires the setting of the targets and objectives of attack and a definitive agreement.

In Case 2020Do6085, the majority opinion, a separate opinion and the dissenting opinion were divided over whether the entry of a co-resident himself or herself, or the entry of an outsider with that co-resident's consent, should be regarded as intrusion on the basis that it is a mode of conduct disturbing the state of peace, or should instead be excluded from the crime of intrusion upon a residence as part of the ordinary use of the shared residence.

In Case 2009Do14407, the participating Justices were unanimous, so no two opposing interpretations were presented; the Court set out a doctrine under which choosing blood transfusion to preserve life is the principle, while an exception in which the right to self-determination is valued as equal to life is recognised only in limited circumstances, together with the prerequisites for that exception and the physician's duty of care.

What the decisions held

The Supreme Court en banc judgment in Supreme Court Decision 2014Do10978 decided January 22, 2015 held as follows: "However, given that an act of incitement is carried out unilaterally by the inciter, that whether a resolution to commit a crime is formed following the incitement and the content thereof may be determined by the incited person beyond the inciter's sphere of control, and that the ground for punishing incitement to insurrection lies in the dangerous and unlawful nature of the act of incitement itself, it is not the case that the principal contents of the act of executing insurrection, such as the time and place, the target and method, and the division of roles, must be specifically presented at the incitement stage in incitement to insurrection; nor can the dangerousness of incitement to insurrection be recognized only where it is found that there is a likelihood that the incited person will proceed to the act of executing insurrection as a result of the incitement." Through this decision, incitement to insurrection is understood as an independent crime of instigating and encouraging with the aim of executing insurrection, which does not require the formation of a resolution by the incited person and is punished on the same footing as preparation and conspiracy. The purpose of disturbing constitutional order is that defined in Article 91 of the Criminal Act, is satisfied by awareness of the possibility (conditional intent accepting consequence), and is determined through a synthesis of circumstantial facts; incitement is to be strictly construed so as not to impair freedom of expression, but requires incitement to violence and a risk of inducing or augmenting a resolution. It clarifies that neither a specific presentation at the incitement stage of the time, place, target, method, and division of roles nor a likelihood of execution is required. Conspiracy to commit insurrection is understood to require an agreement between two or more persons to execute a crime, a common understanding of the setting of the target and objective and the outline of the principal matters, a concurrence of firm intent, and objective clarity and substantive dangerousness. The view of the court below that the statements at the two gatherings constitute incitement, in light of the perception of war and the risk of inducing a resolution in the near future, and that no conspiracy was formed for lack of a firm concurrence going beyond a single discussion, was affirmed.

The Supreme Court en banc judgment in Supreme Court Decision 2020Do6085 decided September 9, 2021 held as follows: "Where one of the co-residents prohibits another co-resident from entering and using the place of joint living without a legal ground or other justifiable reason, even if the other co-resident enters the place of joint living in opposition thereto, such entry is merely a means of using the place of joint living in keeping with the nature and characteristics of the joint residence as previously understood, and cannot be regarded as an act infringing upon the legal interest of the tranquility of the de facto habitation of the co-resident who prohibited entry; accordingly, the crime of trespass on habitation is not established." Through this decision, the crime of trespass on habitation is established where a person other than a resident or the like enters a habitation or the like in which another resides, and is not established where a person arbitrarily enters a place where he or she himself or herself jointly lives. A co-resident bears the concomitant duty to use the place of joint living in keeping with the purpose of the joint living and to tolerate the entry of other co-residents. Even if a co-resident enters in opposition to a prohibition of entry without justifiable reason, this is not an infringement of tranquility and therefore does not constitute trespass on habitation; destruction of a locking device may only be punished under separate provisions. Even if an outsider enters together with the consent of one co-resident, where such act accompanies the ordinary entry and use by the consenting person, it is evaluated as a whole as identical to that person's own act and does not constitute trespass on habitation.

The Supreme Court Decision 2009Do14407 decided June 26, 2014 held as follows: "Where surgery was performed with the patient's consent (agreement) on the premise that no transfusion would be given in the presence of the patient's explicit intention to refuse blood transfusion, and an emergency state arises during the surgery in which the patient's life may be endangered unless a transfusion is given, it may be stated as a principle that the selection of an unavoidable method of transfusion to preserve the patient's life be considered; on the other hand, where the duty to respect the patient's right to self-determination is evaluated as having a value equivalent to that of protecting the patient's life, the medical act must be performed taking this into account." Through this decision, the Supreme Court took the view that where, after surgery being performed with consent without transfusion, an emergency state arises, it is the principle to consider the selection of a method of transfusion for the preservation of life. It clarified, however, that the equivalent value is determined by gathering the age and intellectual capacity, family relations, the background of the refusal and its circumstances and purpose, the persistence of the belief and whether the purpose was suicide, and whether the interests of third parties are infringed. It held that in special circumstances where comparative weighing is difficult, a person who respected one value in accordance with professional conscience cannot be punished. As a premise thereof, it took the view that an explanation of the necessity and risks of transfusion and of the efficacy and limitations of alternative methods, a serious decision, occurrence within the anticipated range, and reconfirmation of the intention to withdraw are necessary. Where an alternative method cannot fully substitute for the effect of preventing bleeding, the necessity of surgery must be carefully examined, preparations for risk mitigation must be made, and whether to continue must be reassessed.

Practical checklist

First, does conduct advocating the destruction of national core infrastructure in the event of an emergency at a gathering of some 130 persons constitute incitement to insurrection and conspiracy to commit insurrection? Gathering on the record the circumstances at the time of the gathering, the place and occasion of the statements, the manner of expression, and the overall context, one examines whether there was "a risk of inducing or augmenting a resolution to commit insurrection in the incited person," and checks whether there was a common understanding of the setting of the target and objective and the outline of the principal matters by reference to the process of the concurrence and the subsequent measures.

Second, does trespass on habitation occur as to a spouse and parents who entered the married couple's joint residence, which had been blocked off, after breaking off a chain latch? On the record, one examines whether the joint living relationship in the apartment was maintained and whether there was "a legal ground or other justifiable reason" for prohibiting entry, and checks whether the outsider's accompanying entry accompanied the ordinary entry and use by the consenting co-resident.

Third, where a 62-year-old deceased who refused a blood transfusion died of excessive bleeding, can the defendant be held liable for negligent homicide arising in the course of duties? Gathering on the record the performance of the explanation of the necessity and risks of transfusion and of the efficacy and limitations of alternative methods, whether there was a "serious decision-making," whether the occurrence was within the anticipated range, and whether the intention to withdraw was reconfirmed, one checks whether there was a breach of the duty of care.

Glossary

Criteria for determining the substantive dangerousness and the agreement requirements distinguishing incitement to insurrection from conspiracy to commit insurrection (2014Do10978): Incitement to insurrection is understood as an independent crime of instigating and encouraging with the aim of executing insurrection, which does not require the formation of a resolution by the incited person and is punished on the same footing as preparation and conspiracy. The purpose of disturbing constitutional order is that defined in Article 91 of the Criminal Act, is satisfied by awareness of the possibility (conditional intent accepting consequence), and is determined through a synthesis of circumstantial facts; incitement is to be strictly construed so as not to impair freedom of expression, but requires incitement to violence and a risk of inducing or augmenting a resolution. It clarifies that neither a specific presentation at the incitement stage of the time, place, target, method, and division of roles nor a likelihood of execution is required. Conspiracy to commit insurrection is understood to require an agreement between two or more persons to execute a crime, a common understanding of the setting of the target and objective and the outline of the principal matters, a concurrence of firm intent, and objective clarity and substantive dangerousness. The view of the court below that the statements at the two gatherings constitute incitement, in light of the perception of war and the risk of inducing a resolution in the near future, and that no conspiracy was formed for lack of a firm concurrence going beyond a single discussion, was affirmed. The decision factors presented include the objective circumstances and the overall context, the type and specificity of the violent acts, whether preparations were made and whether subsequent measures were taken, and the like.

Criteria distinguishing a resident's authority of entry in a joint residence and the scope of punishment of an accompanying outsider (2020Do6085): The crime of trespass on habitation is established where a person other than a resident or the like enters a habitation or the like in which another resides, and is not established where a person arbitrarily enters a place where he or she himself or herself jointly lives. A co-resident bears the concomitant duty to use the place of joint living in keeping with the purpose of the joint living and to tolerate the entry of other co-residents. Even if a co-resident enters in opposition to a prohibition of entry without justifiable reason, this is not an infringement of tranquility and therefore does not constitute trespass on habitation; destruction of a locking device may only be punished under separate provisions. Even if an outsider enters together with the consent of one co-resident, where such act accompanies the ordinary entry and use by the consenting person, it is evaluated as a whole as identical to that person's own act and does not constitute trespass on habitation. The decision factors presented include the form and nature of the joint residence, the circumstances of its formation, the scope of ordinary entry and use, and the like.

The framework for determining criminal liability where the right to self-determination and the protection of life conflict in surgery involving refusal of transfusion (2009Do14407): The Supreme Court took the view that where, after surgery being performed with consent without transfusion, an emergency state arises, it is the principle to consider the selection of a method of transfusion for the preservation of life. It clarified, however, that the equivalent value is determined by gathering the age and intellectual capacity, family relations, the background of the refusal and its circumstances and purpose, the persistence of the belief and whether the purpose was suicide, and whether the interests of third parties are infringed. It held that in special circumstances where comparative weighing is difficult, a person who respected one value in accordance with professional conscience cannot be punished. As a premise thereof, it took the view that an explanation of the necessity and risks of transfusion and of the efficacy and limitations of alternative methods, a serious decision, occurrence within the anticipated range, and reconfirmation of the intention to withdraw are necessary. Where an alternative method cannot fully substitute for the effect of preventing bleeding, the necessity of surgery must be carefully examined, preparations for risk mitigation must be made, and whether to continue must be reassessed. The decision factors presented include age and family relations, the persistence of the belief and whether the purpose was suicide, whether the explanation was performed and reconfirmation made, and the like.

Sources and limitations

This white paper was prepared solely on the basis of the texts of Articles 87, 90(2), 268, and 319(1) of the Criminal Act, Article 2, paragraph (2), subparagraph 1 of the Punishment of Violences, etc. Act, and Articles 10, 12(1), and 16 of the Constitution of the Republic of Korea disclosed by the National Law Information Center, and of the judgment texts of Supreme Court Decision 2014Do10978 decided January 22, 2015, Supreme Court Decision 2020Do6085 decided September 9, 2021, and Supreme Court Decision 2009Do14407 decided June 26, 2014.

This is an academic research material organizing general legal principles and standards for record review, and is not legal advice on an individual case or an opinion submitted to a court.

Points left open

2014Do10978: Should the dangerousness criterion distinguishing incitement at the expression stage from conspiracy by agreement on execution be placed in the content of the statements or in the surrounding circumstances?

2020Do6085: Where is the point at which the tolerance of the joint living ends ascertained?

2009Do14407: Can continuing the surgery even after the risk has materialized be regarded as treatment in accordance with the right to self-determination?

When to reconsider

2014Do10978: If the records of the generation, transmission, and storage of the recording files and of the hash value comparison change, the determination of the admissibility of evidence is reviewed again.

2020Do6085: If a departure from the joint living relationship or a loss of control and management appears on the record, there is room for reconsideration. Even where a legal ground and justifiable reason for prohibiting entry are confirmed, the matter is examined again.

2009Do14407: If there is a defect in the explanation, or if confirmation of circumstances beyond expectation and of the possibility of withdrawal is omitted, the matter is reviewed again. If records emerge showing that whether to continue was newly determined upon bleeding materializing beyond the efficacy of the alternative method, they are examined together.

Statutes referred to

• 형법 제87조, 제90조 제2항, 제268조, 제319조 제1항
• 폭력행위 등 처벌에 관한 법률 제2조 제2항 제1호
• 대한민국헌법 제10조, 제12조 제1항, 제16조

Decisions referred to

• 대법원 2015. 1. 22. 선고 2014도10978 전원합의체 판결 · Decision ledger
• 대법원 2021. 9. 9. 선고 2020도6085 전원합의체 판결 · Decision ledger
• 대법원 2014. 6. 26. 선고 2009도14407 판결 · Decision ledger

Verification status

The cited provisions (Articles 87, 90(2), 268, and 319(1) of the Criminal Act, Article 2, paragraph (2), subparagraph 1 of the Punishment of Violences, etc. Act, and Articles 10, 12(1), and 16 of the Constitution of the Republic of Korea) and the decisions addressed (Supreme Court Decision 2014Do10978 decided January 22, 2015, Supreme Court Decision 2020Do6085 decided September 9, 2021, and Supreme Court Decision 2009Do14407 decided June 26, 2014) were compared against the current statutes of the National Law Information Center and the original texts of the Supreme Court decisions as of 2026-10-15. This white paper cites only the three decisions listed under decisions addressed.