야간선박침입절도
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for four months.
except that the ruling shall be made for one year from the date of the final judgment.
1. Summary of grounds for appeal;
A. Legal principles (not guilty part of the judgment of the lower court) is a ship owned by a victim who intruded by the defendant, as provided in Article 330 of the Criminal Act
B. The sentence imposed by the lower court (one year of imprisonment with labor for four months and one year of suspended execution) is too uneasible and unfair.
2. Determination
A. Article 330 of the Criminal Act provides that a person’s act of theft of another’s property by intrusion upon the residence, guarded dwelling house, structure or ship or occupied room at night, shall be punished more heavily than that of ordinary larceny due to night-time intrusion larceny. Such aggravated punishment is that the use of unstable conditions at night and the rest and rating at night during night-time.
(see Supreme Court Decision 4294Du516, Nov. 16, 1961). Article 330 of the Criminal Act means a structure used as a means of water traffic. Considering the above legislative intent, a vessel which is the object of this crime shall reach the extent that it can be used at least for human habitation.
[M, Note-based Criminal Code (5), 4, 2006, 168] B.
The following facts can be acknowledged according to the evidence duly adopted and examined by the court below.
① A victim-owned vessel shall have a length of 8.63 meters, width of 2.52 meters, weight of 3.05 tons, maximum number of persons on board, and the said vessel shall have a structure of the steering house, fish hold, deck, etc.
② A victim-owned vessel accounts for most of decks, but there are spaces available for people in the steering house of the said vessel, and there are simple equipment for cooking food.
③ The victim carried out operations by up to 21:00 on the day of the instant case, and anchored the said vessel at the bend line of the village of Jinsung-gun, Jinnam-gun.
According to the above facts, the injured party's vessel is not only to the extent of five persons on board, but also to the space where people can sleep or cook food.