[Seocho-dong Legal Story] Adulterer Acquitted Thanks to 'Kind Mistress' Who Opened the Door

Provided by Asia Economy DB

[Asia Economy Reporter Baek Kyunghwan] #. On a hot day in July 2019, Mr. A, a man involved in an affair, comfortably entered the home of his mistress, who kindly opened the door for him. Mr. A visited again two days later. Ten days later, he visited the mistress's home once more. The husband of the mistress, who learned of this belatedly, filed a complaint against Mr. A for 'trespassing.' Until now, courts have ruled that bringing an affair partner into the home can be punishable as trespassing.

In 2015, the Constitutional Court declared the adultery law unconstitutional, abolishing it after 62 years. This was because it infringed on citizens' sexual self-determination rights and privacy, and only prescribed imprisonment, which was deemed unconstitutional. However, as cases of affair-related trespassing?where the affair partner enters the home and is punished for trespassing?increased, side effects from the abolition of the adultery law emerged in various places.

However, the Supreme Court overturned precedent for the first time in 37 years by not recognizing even this 'affair trespassing.' Mr. A, who was sued by the husband after repeatedly entering the home of his married mistress, was ultimately acquitted. Previously, in 1984, the Supreme Court had ruled a similar case where a wife's lover secretly entered the home as guilty.

On July 30, 2019, at 9 a.m., Mr. A entered the home jointly occupied by his mistress Ms. B and her husband Mr. C through the front door opened by the mistress. Mr. A entered the home again in a similar manner at a similar time two days later on August 1. The third visit occurred ten days later.

The first trial found Mr. A guilty and sentenced him to six months in prison with a two-year probation. Although the husband was not present at the time, it was highly likely he opposed letting the affair partner into the home, which disturbed the peace of the residence. The fact that this crime caused the breakdown of the victim couple's relationship and the victim's significant mental damage was applied unfavorably to Mr. A.

Mr. A appealed. In court, he argued that 'trespassing requires an infringement on the peace of the residence, but since the mistress opened the door, the peace inside the home was not disturbed.'

Eventually, the second trial was overturned. It was recognized that the mistress opened the door for Mr. A to enter, so he entered with the consent of one of the co-residents peacefully, not in a manner that could disturb the peace.

However, the Supreme Court referred the case to the full bench. Until now, the Supreme Court has regarded the protected legal interest of trespassing as the actual peace of the residence, maintaining the position that "even if the husband is temporarily absent, his control over the residence continues, and entering the residence for the purpose of adultery is against the husband's will, so even if the wife consents, the actual peace of the husband's residence is disturbed, and in such cases, trespassing is established." However, it judged that discussion was needed on whether trespassing is established when such acts are against the will of other residents.

At the public hearing in June, the prosecution argued the principle that the consent of all cohabitants is necessary to guarantee the peace of all residents, while the defense pointed out that punishing someone when the wife has already allowed another's entry without the husband's consent raises issues about prioritizing family members.

Ultimately, the Supreme Court full bench, by a majority of nine, ruled that "when an outsider enters a shared residence with the actual consent of a resident currently present during the absence of some co-residents, and enters by the usual means of entry, trespassing is not established even if it is against the presumed will of the absent co-residents."

They reasoned that trespassing means entering the residence in a manner that disturbs the actual peaceful state enjoyed by the resident, and whether an act constitutes trespassing should be judged based on the objective and external behavior at the time of entry. In other words, simply entering the residence cannot be considered trespassing solely based on the resident's subjective belief that the entry was against their will.

There was a dissenting opinion. Justices Lee Ki-taek and Lee Dong-won argued that "trespassing should be interpreted as entering the residence against the will of the resident, as in previous precedents, and there is no reason to change the meaning or criteria for trespassing." They claimed that even if an outsider enters with the consent of another resident, if it is clear that the absent resident would have refused entry, the actual peace of the absent resident's residence is disturbed, and thus trespassing is established.