Series Index
Part 1 | Unpaid Corporate Transactions: Liability Behind the Veil
Part 2 | Trade Name Continuity and the Liability of a Successor
Part 3 | Directors’ Liability for Damages
Part 4 | The Person Behind the Company Name
Part 5 | The Limits of Self-Defense in Assault Cases
Part 6 | Criminal Settlement Money: How Much Is Appropriate?
Part 7 | Can Quasi-Rape Be Established If One Has No Memory After Drinking?
Part 8 | Freelancers and Severance Pay: What Courts Really Examine
Part 9 | Assignment of Receivables for Business Financing
Part 10 | Can You Get Divorced If Your Foreign Spouse Disappears?
Part 11 | Can a Tenant Terminate a Lease if Repairs Are Refused?
Part 12 | Can a Subcontractor Recover Payment if the Main Contractor Disappears?
Part 13 | What You Must Know Before Your First Police Interview
Part 14 | Can a Real Estate Contract in a Land Transaction Permit Zone Be Cancelled Before Government Approval?
Part 15 | Is It Trespass to Enter Another Person's Home by Concealing Criminal Intent?
By Hong Seung-kwon
Principal Attorney, PAN Law Firm (skh@law-pan.com)
Suppose a person gains entry to another person's home by pretending to be a parcel delivery driver, having obtained the occupant's permission to enter. If that person is, in fact, a thief whose true purpose is to steal property from the home, does the conduct constitute not only theft but also criminal trespass? Had the occupant known the visitor was not a delivery driver, the door would never have been opened. At the same time, the situation is clearly different from one in which someone forcibly breaks into a residence from the outset.
This article examines how the Supreme Court of Korea has addressed this issue and offers the author's perspective on the evolving legal standard.
According to the Supreme Court, the legal interest protected by the crime of trespass is the de facto peace and security of a residence. In general, "trespass" means entering a residence against the will of its occupant or lawful manager. When a person enters a residence contrary to that will, the peaceful condition of the home is disturbed, and the offense of trespass is established.
Traditionally, the Supreme Court evaluated such cases by asking whether the occupant would have refused consent had the true circumstances been known. This hypothetical intent of the occupant served as the primary basis for determining whether the residential peace had been violated.
More recently, however, the Court has taken a different approach in several trespass cases. Rather than focusing primarily on the property holder's presumed opposition, it has emphasized whether the objective and outward manner of entry was one that disturbed the peaceful condition of the premises.
For example, the Court has held that trespass is not established where only one of two co-occupants, such as one spouse, consented to the entry, or where a person entered a restaurant or a city hall lobby for the purpose of committing another crime, so long as the objective manner of entry itself did not disturb the peace of the premises. This approach places greater weight on how the individual actually entered the property than on the person's concealed criminal intent or the occupant's unexpressed state of mind. In doing so, it narrows the scope of criminal liability and arguably aligns more closely with the principle that criminal law should be applied only as a measure of last resort.
An important question, however, remains unresolved: Does this recent line of decisions mean that the Supreme Court has abandoned the traditional requirement of acting against the occupant's will in defining trespass?
In the author's view, such a conclusion would be premature. The cases decided by the Supreme Court have involved situations in which one co-occupant consented to the entry or where the premises—such as restaurants or other publicly accessible facilities—were generally open to members of the public.
In such settings, the role of the occupant's intent naturally differs from that in a purely private residence. Where a home is jointly occupied, entry with the consent of one resident is fundamentally different from entry without anyone's permission. Likewise, where a place is ordinarily open to public access, the property holder's intention is inherently more accommodating of visitors than in a strictly private space.
Moreover, the very concept of "trespass" presupposes entry without permission. It would therefore be conceptually awkward to disregard the occupant's intent altogether and determine whether residential peace has been disturbed solely on the basis of outward appearances.
Accordingly, it is more appropriate to understand the Supreme Court's recent decisions not as rejecting the significance of the occupant's will, but rather as recognizing that the manner in which that intent should be evaluated may vary depending on the particular type of entry involved.
Ultimately, the peace of a private residence is rooted in the autonomy of those who live there. When a person gains access by deceiving the occupant and concealing a criminal purpose, the occupant's intent is likely to remain an important factor in determining whether the offense of criminal trespass has been committed.
About the Author
Hong Seung-kwon is an attorney at Law Firm PAN, where he represents clients in civil and criminal litigation while advising on a wide range of legal issues emerging in the digital era. His research focuses on the interaction between technological innovation, property rights, regulatory policy, and the evolving legal framework governing modern markets.
