[Seocho-dong Legal Talk] Homosexuals Avoid Punishment for Trespassing Due to Precedent Change

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] On October 27, 2018, at 4:30 p.m., a homosexual man, Mr. A, visited Mr. B, a minor, at an apartment in Hwaseong-si, Gyeonggi-do. This was to engage in sexual relations with Mr. B, whom he had met through social networking services (SNS). With Mr. B's consent, Mr. A confidently entered Mr. B's home through the apartment entrance.

However, Mr. B's father, Mr. C, who later found out about this, filed a complaint against Mr. A for trespassing without his permission. Although Mr. B, who lived with Mr. C, had consented, Mr. C, as a co-resident, had not given consent, and it was clear that if Mr. C had known Mr. A's purpose for entering his home, he would not have allowed it. Therefore, Mr. C's presumed consent could not be recognized. Ultimately, the prosecution indicted Mr. A on charges of trespassing.

Judge Baek of Suwon District Court, who presided over the first trial, found Mr. A guilty of trespassing in May 2019 and sentenced him to a fine of 1 million won. Judge Baek stated, "Even if one of the cohabitants, the minor Mr. B, consented to the entry, if the other cohabitant, the victim, did not explicitly or implicitly consent, and the entry into the victim's residence disturbed the victim's freedom and peace of residence, the crime of trespassing is established." This ruling followed the Supreme Court's existing stance, which recognizes trespassing when the entry violates the explicit or presumed will of a co-resident, viewing the protected legal interest of trespassing as the 'actual peace of residence.'

Mr. A appealed. In his appeal, he argued that ▲he entered Mr. C's home with Mr. B's consent, ▲the act of homosexual relations between him and Mr. B was not illegal, ▲judging the guilt or innocence of trespassing based on the uncertain factor of the victim's presumed will violates the principle of legality, and ▲since the act did not violate social norms, the first trial's ruling involved a legal error. He also claimed that the fine of 1 million won was excessively harsh and argued for sentencing mitigation.

However, the 3rd Criminal Division of Suwon District Court dismissed all of Mr. A's claims in September 2019 and rejected the appeal. The court first held that even assuming, as Mr. A claimed, that sexual relations for homosexual purposes were not illegal, entering Mr. C's residence against the will of another co-resident, Mr. C, sufficiently disturbed Mr. C's peace of residence. The court also found it difficult to consider Mr. C's actions as justifiable conduct.

Mr. A then appealed to the Supreme Court. The Supreme Court deliberated on Mr. A's case for over two years without reaching a conclusion because the full bench of the Supreme Court was reviewing whether trespassing is established when one enters a shared residence with the consent of some co-residents but against the will of others.

Among the cases consolidated for review by the full bench was one where a man entered his mistress's home with her consent and committed an illicit act, after which the husband filed a trespassing complaint. Another case involved a husband who, after a marital dispute and leaving home, returned a month later and tried to enter the house with his parents. When his spouse refused to open the door, he broke the entrance door and was charged with trespassing under the Act on the Punishment of Violent Acts.

On September 9, the Supreme Court full bench acquitted the defendants in both cases. Of the 11 justices participating in the deliberation, nine ruled that "when an outsider enters a shared residence with the realistic consent of a current resident in the absence of some co-residents, following normal entry methods, trespassing is not established even if it goes against the presumed will of the absent co-residents."

Since the protected legal interest of trespassing is the 'actual peace of residence,' for trespassing to be established, the peace of residence must have been actually disturbed during the entry process, and it should not be judged based on the presumed will of other co-residents. This represents a Supreme Court precedent change after 37 years.

According to this revised Supreme Court precedent, it is difficult to hold Mr. A criminally liable for trespassing since he entered Mr. C's home with Mr. B's consent. Ultimately, on the 10th, the Supreme Court cited the September precedent and ruled to "overturn the lower court's judgment and remand the case to the Suwon District Court main division for retrial," a ruling implying acquittal.