Trespassing: Types, Elements of the Offense, and Refusal to Leave

Trespassing

Trespassing is defined in Article 319 of the Korean Criminal Act.

Article 319 (Intrusion upon Habitation, Refusal to Leave) ① A person who intrudes upon a human habitation, a managed building, a ship or aircraft, or an occupied room shall be punished by imprisonment for not more than 3 years or by a criminal fine not exceeding KRW 5 million. <Amended Dec. 29, 1995.>

② A person who, upon being requested to leave such a place, refuses to do so shall be subject to the same punishment as in the preceding paragraph.

Types of Trespassing

The types of trespassing offenses are as follows:

Intrusion upon habitation, refusal to leave
Aggravated trespassing
Nighttime burglary by intrusion upon habitation
Search of a habitation or body

Here, nighttime burglary by intrusion upon habitation constitutes larceny under the Criminal Act, but because it is also closely related to intrusion upon habitation, it has been included among the types of trespassing.

Elements of Trespassing

The elements of trespassing are as follows.

The object must be a human habitation, a managed building, a ship or aircraft, or an occupied room
There must be intent to intrude
An actual intrusion upon the habitation must occur

The Habitation in Trespassing

A habitation for the purposes of trespassing means a place where a person resides and uses for sleeping and eating.

Because it does not matter whether the use is temporary or continuous, places that are not permanently occupied, such as a vacation home, are also included.

Whether a person was present at the time of the intrusion is not important, and the shared entrance, stairways, hallways, garden, and garage attached to a multi-household dwelling also qualify as a habitation.

Intrusion in Trespassing

An intrusion for the purposes of trespassing means entering a habitation against the will of the occupant.

In addition, the determination also takes into account whether the de facto state of peace and quiet was infringed.

If a person enters a habitation by the usual means of access after obtaining the occupant's actual consent, trespassing is not established. The mere fact that the occupant would not have consented to the entry had they known the person's true purpose does not establish trespassing.

(Supreme Court Decision 2017Do18272, en banc, rendered Mar. 24, 2022)

Intent in Trespassing

Without intent, trespassing is not punishable pursuant to Article 13 of the Korean Criminal Act.

Article 13 (Intent) An act performed without awareness of the facts constituting the elements of an offense shall not be punished. However, this shall not apply where the law specifically provides otherwise.

Elements of the Offense of Refusal to Leave

The elements of the offense of refusal to leave are as follows

A request to leave must have been received from the occupant, manager, or possessor
The person must have failed to leave the habitation, building, room, or the like

The Occupant, Manager·Possessor in the Offense of Refusal to Leave

For the offense of refusal to leave, a person does not need to hold a legally legitimate right to reside in·manage·or possess the habitation in order to qualify as the occupant, manager, or possessor.

This applies in principle even where, as a lodging contract under which an innkeeper provides a guest with a room for temporary use in exchange for payment comes to an end, the guest is requested to leave by the manager of the lodging establishment.

(Supreme Court Decision 2023Do9350, rendered Dec. 14, 2023)

The Request to Leave in the Offense of Refusal to Leave

A request to leave for the offense of refusal to leave may be made implicitly, and a single request is sufficient without any need to repeat it.

However, depending on the circumstances, the right to request a person to leave may be restricted by rights under public or private law.

For example, a restaurant need not have its request to leave honored by a customer until the customer has finished their meal.

Trespassing and the Offense of Refusal to Leave

Trespassing and the offense of refusal to leave cannot be established at the same time.

If a person commits both intrusion upon habitation and refusal to leave at the same time, only the offense of intrusion upon habitation is established, and the offense of refusal to leave is not.

Joint Intrusion upon Habitation, Refusal to Leave

Joint intrusion upon habitation and refusal to leave may be subject to aggravated punishment under Article 2(2)1 of the Punishment of Violences, etc. Act.

Article 2 (Assault, etc.)

② A person who, jointly with 2 or more persons, commits any of the offenses listed in the following subparagraphs shall be subject to up to one-half aggravation of the punishment prescribed in the relevant provision of the 「Criminal Act」.

1. The offenses under 「Criminal Act」 Article 260(1) (Assault), Article 283(1) (Intimidation), Article 319 (Intrusion upon Habitation, Refusal to Leave) or Article 366 (Destruction of Property, etc.)

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