Adulterer Who Entered Home with Wife's Consent, Charged with Trespassing Against Husband? Supreme Court Public Hearing Next Month

Supreme Court Grand Bench.
[Image source=Yonhap News]

[Asia Economy Reporter Choi Seok-jin] Should a man who commits adultery with another man's wife, entering the home with the wife's consent, be recognized as committing the crime of trespassing against the husband?

This issue is related to whether the protected legal interest of the crime of trespassing under criminal law should be regarded as the right of residence or the actual peace of the residence, and it has been a subject of various conflicting views in academia for decades.

So far, the Supreme Court has regarded the protected legal interest of trespassing as the actual peace of the residence, while maintaining the position that "even if the husband is temporarily absent, the husband's control over the residence still exists, and entering the residence for the purpose of adultery is considered against the husband's will, so even if there was consent from the wife, the actual peace of the husband's residence is broken, and in such cases, trespassing is established."

However, regarding this, the majority opinion in academia holds that if the protected legal interest of trespassing is regarded as the actual peace of the residence, and there is genuine consent from the current resident, the actual peace cannot be considered broken, so trespassing should not be established.

From the standpoint that the protected legal interest of trespassing is the right of residence, in the case of cohabitation, consent from all residents is required for entry, thus recognizing trespassing; while the view that consent from the current resident alone is sufficient denies the establishment of trespassing.

The Supreme Court has decided to hold a public hearing to hear expert opinions on this topic, where opinions are sharply divided.

On the 4th, the Supreme Court announced that on the 16th of next month at 2 p.m., it will hold a public hearing of the full bench, attended by the Chief Justice and all Justices, in the Grand Courtroom regarding two cases: one trespassing case and one case of joint residence trespassing under the Act on the Punishment of Violent Acts.

The Supreme Court stated, "The discussion on whether trespassing can be established when consent is obtained from one of the co-residents but it is against the will of other residents, and whether co-residents can be punished for trespassing, concerns how to harmonize and reasonably adjust the conflict of the protected legal interest of ‘actual peace’ within the shared residence among co-residents. This is closely related to the daily life relationships of the people, and whether to change the long-standing existing precedent doctrine may affect the overall doctrine of trespassing."

Chief Justice Kim Myung-soo, considering that this matter is closely related to the daily life relationships of the people and its social impact, requested various organizations, including the Korean Women Lawyers Association, to submit opinions in advance of the public hearing to gather broad views from various sectors.

At this public hearing, Professor Kim Jae-hyun of the Police Administration Department at Osan University will present as an expert witness for the prosecution, and Professor Kim Sung-kyu of the Graduate School of Law at Hankuk University of Foreign Studies will present as an expert witness for the defendant.

The Supreme Court plans to make the entire process public, including questions and answers between the bench, prosecutors, defense attorneys, and expert witnesses, to enhance the fairness and transparency of the trial.

The final ruling is expected to be delivered within 2 to 4 months after the conclusion of the hearing, following final discussions among the Chief Justice and Justices.