Open Decision Ledger · Criminal law
Entry with a hidden purpose and the actual peace of the dwelling
Supreme Court, Apr. 28, 2022, 2022Do1717 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영·반포등)·성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영물소지등)·주거침입
Official text on the National Law Information Center
Question
Where the actor entered a dwelling with the occupant's consent, but the entry was made for the purpose of a crime or the occupant would not have consented had they known the real purpose, does that entry constitute 'entry' under Article 319(1) of the Criminal Act even though no circumstance shows that the actual peaceful state of the dwelling was infringed?
Holding
Not automatically. 'Entry' means entering a dwelling in a manner that disturbs its actual peaceful state, and whether entry amounts to it is judged in principle by the objective, outwardly shown manner of entry at the time; where consent was obtained but the entry served a criminal purpose, or the occupant would not have consented had they known the real purpose, it is entry only if, weighing the form, use and nature of the dwelling, how entry by outsiders is controlled and managed, and the circumstances and means of entry, the actual peaceful state of the dwelling is assessed as infringed. On this record the defendant went into the victim's bedroom by ordinary means at the victim's request to install a television, installed it in the victim's presence, the victim did not think the conduct was housebreaking, and nothing showed the peaceful state was infringed, so the conviction for housebreaking could not stand.
Points at issue, verbatim
행위자가 거주자의 승낙을 받아 주거에 들어갔으나 범죄 등을 목적으로 한 출입이거나 거주자가 행위자의 실제 출입 목적을 알았더라면 출입을 승낙하지 않았을 것이라는 사정이 인정되는 경우, 행위자의 출입행위가 주거침입죄에서 규정하는 침입행위에 해당하기 위한 요건
Unofficial English translation
Where the actor entered the residence with the occupant's consent but the entry was for the purpose of committing a crime, etc., or where circumstances are found such that the occupant would not have consented to the entry had the occupant known the actor's actual purpose of entry, the requirements for the actor's act of entry to constitute the entry prescribed in the crime of trespass into a residence
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 청주지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Cheongju District Court.
Form of the test
Elements stated Stated in the decision
침입이란 주거의 사실상 평온상태를 해치는 행위 태양으로 주거에 들어가는 것을 의미하고, 침입에 해당하는지는 출입 당시 객관적·외형적으로 드러난 행위 태양을 기준으로 판단함이 원칙이다.
Unofficial English translation
Entry means an act of entering a residence in a manner that impairs the de facto state of peace of the residence, and whether an act constitutes entry is determined in principle on the basis of the manner of the act as objectively and externally manifested at the time of entry.
Factors
- 행위자가 거주자의 승낙을 받아 주거에 들어갔으나 범죄 등을 목적으로 한 출입이거나
- 거주자가 행위자의 실제 출입 목적을 알았더라면 출입을 승낙하지 않았을 것이라는 사정이 인정되는 경우
- 피해자의 사실상 평온상태가 침해되었다고 볼 만한 사정이 없다는 이유로
- 피고인의 출입이 비록 범죄 등의 목적을 숨기고 한 것이라도 주거침입죄가 성립하지 않는다고 한 사례
Unofficial English translation
• the actor entered the residence with the occupant's consent but the entry was for the purpose of committing a crime, etc., or
• where circumstances are found such that the occupant would not have consented to the entry had the occupant known the actor's actual purpose of entry
• on the ground that there are no circumstances to regard the victim's de facto state of peace as having been infringed
• A case in which it was held that no crime of trespass into a residence is established even though the defendant's entry was made concealing a purpose of committing a crime, etc.
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2021. 9. 9. 선고 2020도12630 전원합의체 판결(공2021하, 1970)
Unofficial English translation
Supreme Court en banc Decision 2020Do12630 decided September 9, 2021 (Gong 2021 Ha, 1970)
Decisions referred to
[1] 대법원 2021. 9. 9. 선고 2020도12630 전원합의체 판결(공2021하, 1970), 대법원 2022. 3. 24. 선고 2017도18272 전원합의체 판결(공2022상, 819)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
When the actor installs a television carrying a CCTV camera and a video recorder in the occupant's bedroom without the occupant knowing, is that installation itself conduct that disturbs the actual peaceful state of the dwelling?
The judgment of the Cheongju District Court on remand, once it assesses whether the actual peaceful state of the victim's dwelling was infringed, would call for this entry to be read again. So would a later en banc decision revising Supreme Court Decision 2020Do12630 or Supreme Court Decision 2017Do18272, or an amendment to Article 319(1) of the Criminal Act.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 4 (form of the test).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary reading states a general test as requirements (요건 제시), while the independent reading applies the same reasoning to the record (사안 적용), so the emphasis differs although the reasoning is the same.
피해자의 사실상 평온상태가 침해되었다고 볼 만한 사정이 없다는 이유로, 피고인의 출입이 비록 범죄 등의 목적을 숨기고 한 것이라도 주거침입죄가 성립하지 않는다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Cheongju District Court, in its judgment of 20 January 2022 (2021No1396), found the defendant guilty on the charge that on 1 March 2020 at about 16:09 he went to the victim's dwelling in Anseong-si, hid the fact that the television in the victim's bedroom carried a CCTV camera and a video recorder, and entered as far as the bedroom saying he would install a television for the victim. It convicted him for the reasons it gave, applying the law as it stood before the en banc decisions changed it.
Supreme Court standard: The Supreme Court held that entry means entering a dwelling in a manner that disturbs its actual peaceful state, judged in principle by the objective manner of entry at the time, and that the occupant's will is one element to consider but cannot be the main one. It found from the record that the defendant entered the bedroom by ordinary means at the victim's request, installed the television in the victim's presence, the victim did not regard the conduct as housebreaking, and nothing showed the peaceful state was infringed, so the conviction rested on a misapprehension of the law on housebreaking. Because the housebreaking count stood in concurrence with the remaining convictions under Article 37 first clause of the Criminal Act and a single sentence was imposed, the entire judgment was reversed and the case remanded to the Cheongju District Court, the grounds of appeal not being examined.
Distinguishing conditions
- A case in which the actor entered without the occupant's consent, in an outward manner that of itself disturbs the actual peaceful state of the dwelling.
- A case in which the occupant knew the actor's real purpose of entry and consented to it anyway.
- A case in which, weighing the form, use and nature of the dwelling, the control of entry by outsiders and the circumstances and means of entry, the actual peaceful state is assessed as infringed.
Record verification notes
Set the file against four things before relying on this decision: whether the occupant consented and what the occupant knew of the real purpose; the form, use and nature of the dwelling; how entry by outsiders is controlled and managed; and the circumstances and means of entry, since the evaluation runs from the objective manner shown at the time of entry. Note also that the reversal reached the whole judgment only because the housebreaking count stood in concurrence with the other convictions and one sentence was imposed.
From the official text
Points at issue
[1] 주거침입죄의 구성요건적 행위인 ‘침입’의 의미 및 침입에 해당하는지 판단하는 기준 / 행위자가 거주자의 승낙을 받아 주거에 들어갔으나 범죄 등을 목적으로 한 출입이거나 거주자가 행위자의 실제 출입 목적을 알았더라면 출입을 승낙하지 않았을 것이라는 사정이 인정되는 경우, 행위자의 출입행위가 주거침입죄에서 규정하는 침입행위에 해당하기 위한 요건 [2] 피고인이 피해자의 안방에 CCTV 카메라와 동영상 저장장치를 부착한 TV인 사실을 숨기고 피해자에게 TV를 설치해주겠다면서 안방까지 들어가 피해자의 주거에 침입하였다는 내용으로 기소된 사안에서, 피해자의 사실상 평온상태가 침해되었다고 볼 만한 사정이 없다는 이유로, 피고인의 출입이 비록 범죄 등의 목적을 숨기고 한 것이라도 주거침입죄가 성립하지 않는다고 한 사례
Unofficial English translation
[1] The meaning of "entry," which is the conduct constituting the crime of trespass into a residence, and the criteria for determining whether an act constitutes entry / The requirements for an actor's act of entry to constitute the entry prescribed in the crime of trespass into a residence, where the actor entered the residence with the occupant's consent but the entry was for the purpose of committing a crime, etc., or where circumstances are found such that the occupant would not have consented to the entry had the occupant known the actor's actual purpose of entry [2] A case in which the defendant was prosecuted on the charge that, concealing the fact that the TV was one to which a CCTV camera and a video storage device were attached, he entered as far as the master bedroom under the pretense of installing the TV for the victim and thereby trespassed into the victim's residence, and in which it was held that no crime of trespass into a residence is established even though the defendant's entry was made concealing a purpose of committing a crime, etc., on the ground that there are no circumstances to regard the victim's de facto state of peace as having been infringed
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 청주지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Cheongju District Court.
Provisions referred to
[1] 형법 제319조 제1항 [2] 형법 제319조 제1항, 형사소송법 제325조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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