Open Decision Ledger · Criminal law
Entry without lawful procedure and legally protected work
Supreme Court, Feb. 2, 2023, 2022Do5940 (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: 업무방해·특수건조물침입
Official text on the National Law Information Center
Question
Where a manager was in fact possessing and managing a structure, does a civil law rights holder who enters it without lawful procedure commit building trespass, and what makes an 'obstruction of business' the work protected by Article 314 of the Criminal Act?
Holding
Yes on both counts. Because the offence of building trespass protects the de facto peace of the structure being managed, the manager's lawful authority to manage it does not decide whether the crime is made out; where the manager is in fact possessing and managing the structure, even an unlawful civil possession is protected until it is released by lawful procedure, so a civil law rights holder who enters without lawful procedure commits the offence. Whether the manager enjoyed that de facto peace is judged purposively in light of social common sense, taking account of how possession began, its duration and current state, and the state of control and management over outsiders' entry. The 'work' protected by the offence of obstruction of business need not be lawful or valid; it suffices that it is worth protecting against unlawful interference, and a defect in how the work began or is carried on takes it outside protection only where it becomes antisocial to a degree utterly intolerable in social life or must receive an equivalent evaluation in terms of legal protection.
Points at issue, verbatim
[1] 건조물침입죄의 보호법익 및 관리자가 건조물을 사실상 점유·관리하는 경우, 사법상 권리자라 하더라도 정당한 절차에 의하지 아니하고 건조물에 침입한 때에는 건조물침입죄가 성립하는지 여부(적극)
Unofficial English translation
[1] The protected legal interest of the crime of intrusion into a building and whether, where the manager is in de facto possession and management of a building, the crime of intrusion into a building is established even against a holder of rights under private law where such person intruded into the building without following due procedure (affirmative)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Form of the test
Elements stated Stated in the decision
형법상 업무방해죄의 보호대상이 되는 ‘업무’란 직업 또는 계속적으로 종사하는 사무나 사업으로서 타인의 위법한 행위에 의한 침해로부터 보호할 가치가 있으면 되고 반드시 그 업무가 적법하거나 유효할 필요는 없다.
Unofficial English translation
The 'Work' subject to protection under the crime of obstruction of business under the Criminal Act means an occupation or continuously engaged affairs or business that is worthy of protection against infringement by another's unlawful act, and such work need not necessarily be lawful or valid.
Factors
- 정당한 절차에 의하지 아니하고 건조물에 침입한 때에는
- 관리자가 건조물을 사실상 점유·관리하는 경우
- 그에 따른 ‘사실상 평온’을 누리고 있었는지 판단하는 방법
- 업무의 개시나 수행과정에 실체상 또는 절차상 하자가 있더라도
- 그 정도가 반사회성을 띠거나 그와 동등한 평가를 받을 수밖에 없는 경우에 이르지 아니한 경우
Unofficial English translation
• where one intrudes into a building without following due procedure
• where the manager is in de facto possession and management of a building
• the method of determining whether the manager was enjoying the accompanying 'de facto tranquility'
• notwithstanding a defect in substance or in procedure in the commencement or performance of the work
• where the degree thereof does not reach the point of bearing an antisocial nature or being subject to an equivalent evaluation
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1984. 4. 24. 선고 83도1429 판결(공1984, 944)
Unofficial English translation
Supreme Court Decision 83Do1429 decided April 24, 1984 (Gong 1984, 944)
Decisions referred to
[1] 대법원 1984. 4. 24. 선고 83도1429 판결(공1984, 944), 대법원 2006. 9. 28. 선고 2006도4875 판결 / [2] 대법원 2006. 3. 9. 선고 2006도382 판결, 대법원 2013. 11. 28. 선고 2013도4430 판결, 대법원 2015. 4. 23. 선고 2013도9828 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If guards stood by without controlling who entered the site, would the manager still have been enjoying the de facto peace protected by Article 319 of the Criminal Act?
A further record on the state of control over entry by outsiders at the moment of entry would require this entry to be read again, as would a later Supreme Court decision revising the test for de facto peace or the scope of work protected by Article 314 of the Criminal Act.
Cross-family AI independent reading & axis check
8 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 all 8 axes.
Raw 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 Seoul Central District Court, in its judgment of 28 April 2022 (2020No2577), affirmed the first-instance conviction for special building trespass on the ground that the victims had occupied the construction site unlawfully, but had reported the deployment of guards to the competent police station and obtained the related permission, and had possessed and managed the site by keeping guards on it for about 65 days. It affirmed the conviction for obstruction of business on the ground that managing the site and the structures was work of legal value worth protecting.
Supreme Court standard: The Supreme Court found no error. It held that the court below had not departed from the limits of free evaluation by acting contrary to the rules of logic and experience, and had not misread the law on special building trespass or conspiracy, nor on the 'work' protected by the offence of obstruction of business. It also held that Defendant 3's complaint that sentencing discretion had been exceeded was, in substance, a complaint that the sentence was unfair, and was not a lawful ground of appeal because a sentence lighter than life imprisonment or ten years' imprisonment had been imposed.
Distinguishing conditions
- A case in which the manager was not in fact possessing and managing the structure at the moment of entry, so that there was no de facto peace to protect.
- A case in which possession had already been released through lawful procedure, since the de facto peace of an unlawful civil possession is protected until that happens.
- A case in which the defect in how the work began or is carried on reaches a degree of antisociality utterly intolerable in social life, or must receive an equivalent evaluation in terms of legal protection.
Record verification notes
Set the alleged entry against the manager's actual position: when and how possession began, how long it lasted and what state it was in, and whether the guards really controlled who entered, since the Court judged de facto peace on all of these together. Then test the work relied on against the antisociality threshold, and check the sentence actually imposed before raising a sentencing complaint, because Article 383(iv) of the Criminal Procedure Act allows an unfairness complaint only where death, life imprisonment or an imprisonment or detention of ten years or more has been imposed.
From the official text
Points at issue
[1] 건조물침입죄의 보호법익 및 관리자가 건조물을 사실상 점유·관리하는 경우, 사법상 권리자라 하더라도 정당한 절차에 의하지 아니하고 건조물에 침입한 때에는 건조물침입죄가 성립하는지 여부(적극) / 침입 당시 관리자가 건조물을 사실상 점유·관리하여 그에 따른 ‘사실상 평온’을 누리고 있었는지 판단하는 방법 [2] 업무방해죄의 보호대상이 되는 ‘업무’의 의미 및 법률상 보호할 가치가 있는 업무인지 판단하는 기준 / 업무의 개시나 수행과정에 실체상 또는 절차상 하자가 있더라도 그 정도가 반사회성을 띠거나 그와 동등한 평가를 받을 수밖에 없는 경우에 이르지 아니한 경우, 업무방해죄의 보호대상이 되는지 여부(적극)
Unofficial English translation
[1] The protected legal interest of the crime of intrusion into a building and whether, where the manager is in de facto possession and management of a building, the crime of intrusion into a building is established even against a holder of rights under private law where such person intruded into the building without following due procedure (affirmative) / the method of determining whether, at the time of intrusion, the manager was in de facto possession and management of the building and enjoying the accompanying 'de facto tranquility' [2] The meaning of 'Work' which is the object of protection of the crime of obstruction of business, and the criteria for determining whether the work is one that is worthy of legal protection / Whether, notwithstanding a defect in substance or in procedure in the commencement or performance of the work, the work constitutes the object of protection of the crime of obstruction of business where the degree thereof does not reach the point of bearing an antisocial nature or being subject to an equivalent evaluation (affirmative)
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
상고를 모두 기각한다.
Unofficial English translation
All appeals are dismissed.
Provisions referred to
[1] 형법 제319조 [2] 형법 제314조
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.
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