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If a married woman secretly brings her adulterous partner into the home when her husband is away, can that man be punished for trespassing in Korea?

The following is a summary of the Legal TV news consulted by Attorney Kim Bo-ram, the representative of Law Office Haeon

If a married woman secretly brings her adulterous partner into the home when her husband is away, can that man be punished for trespassing?


Previously, cases like this have gone to trial with the illicit partner charged with trespassing, leading to conflicting rulings between the first and second trials, resulting in an intense legal battle.


However, the Supreme Court's full bench has rendered its decision on the appeal of this case, ruling that it does not constitute "trespassing."


Let's examine the specific reasons behind the Supreme Court's ruling. This is reporter Kim Hae-in.


In 2019, married woman A met man B through a social gathering, and they began an adulterous relationship.


They became increasingly brazen, with A bringing B to the home she shared with her husband multiple times while her husband C was away on an overseas business trip, and they engaged in sexual relations.


Eventually, husband C belatedly learned of their illicit affair happening in his home and reported B for "trespassing."


Why did husband C report B for trespassing?


According to legal experts, since the adultery law was abolished, C had to resort to an indirect method because he could no longer directly prosecute the adulterous act itself.


[Attorney Kim Bo-ram / Law Office Haeon]

"Since criminal punishment for the adulterous act itself is no longer possible, people have been looking for other crimes that could lead to criminal charges, and such lawsuits have become more common since the adultery law was abolished some time ago..."


Furthermore, attorney Kim Bo-ram added that since it was the couple's shared residence, B could potentially be charged with trespassing because he only had the wife's permission to enter, not the husband's.


Ultimately, B was brought to trial for entering the couple's home with only the consent of his illicit partner A and for the purpose of committing adultery. The key issue became whether trespassing is established when only one of the co-residents gives consent for entry.


[Attorney Kim Bo-ram / Law Office Haeon]

"The issue was whether trespassing is established when there are co-residents and only one person consents while the other does not..."


In the first trial, B's charge was upheld, and he was sentenced to 6 months in prison, suspended for 2 years of probation.


However, the second trial overturned the verdict, acquitting B.


The second trial court's reasoning was that "since B entered with A's 'consent,' he is not guilty."


The second trial court stated: "While it is acknowledged that B entered A's home for the purpose of adultery," they ruled that "the presumed intent of the other absent co-resident does not affect the establishment of trespassing, which is intended to protect the peace of the residence."


In other words, while someone entering a residence against the will of a resident does violate that peace, if one of the two residents permitted the entry, it is difficult to consider the 'peace of the residence' as having been disturbed.


With conflicting rulings from the lower courts and intense legal battles, the Supreme Court took the case to an open hearing last June.


The prosecution argued, "The constitutional right to residential freedom must be guaranteed for all co-residents. The presumed opposition of the husband should take precedence over the freedom to permit entry, and therefore trespassing should be established."


The prosecution stated, "While B obtained A's consent, the husband C's opposition could be expected, and since the purpose was an unlawful act in civil terms, the charge should be upheld."


The prosecution's argument was that the residential rights of the absent resident should not be ignored.


In response, A's legal counsel argued, "This is an attempt to punish an adulterous act through trespassing charges in place of the already abolished adultery law." They countered, "If trespassing is established despite the wife's consent based on the husband's dissent, it would mean the husband's will takes precedence over the wife's."


After intense legal debates, today the Supreme Court's full bench ruled in its appeal decision that "this does not constitute trespassing."


The Supreme Court stated, "If one of the co-residents currently present in the residence gives consent, and entry is made through normal means, trespassing is not established even if it goes against the presumed intent of the other absent resident."


The Court added, "Subjective circumstances of going against a resident's will alone cannot immediately constitute trespassing."


Attorney Kim Bo-ram explained this ruling as "the state not intervening in internal family matters."


[Attorney Kim Bo-ram / Law Office Haeon]

"The differing views between co-residents can still be seen as an internal family matter, so in a sense, the state's involvement through punishment has been reduced."


Kim Hae-in with the legal broadcast.



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