| The Inviolability of Residence which is described by the Article 39 of the Constitution is to protect not the architecture of the house, but the private and peaceful material space in which a person resides, free from the invasion of the public power and other people, and to leave the person operates his own private life freely. As the concretion of the constitutional norms, criminal legal norms and their judicial judgments should bear and exercise the spirit and value of constitution. The judgment in question, based on the theory of implicated offender, has chosen the offense of rape, but neglected the normative value of residence protected by the state legal system, which is independent of the property and personal body in it. This processing mode also fails to recognize the systematic arrangement of residence in the Criminal Law, and fails to recognize the difference between the Crimes Committed in the Residence and the Crimes Committed after Illegal Invasion into the Residence.In order to evaluate comprehensively the Residence-related Crimes, first of all, it is appropriate to differentiate between Mere Formative Residence-related Crimes and Substantial Residence-related Crimes, based on the consideration whether the constitutional value of residence has been considerably damaged. Secondly, it is necessary to construct a Four-Step System of Substantial Residence-related Crimes, based on two standards, that is, the legality of entering the residence and the deliberation of the crimes committed after getting into the residence. On the basis of the above works, except for Theft and Robbery, it is proper for the judgment to treat the Crimes Committed after Illegal Invasion into the Residence differently, according to the different contextual articulation in the provisions of the Criminal Law, such as "if the circumstances are serious" or "if the circumstances are minor". |
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