[2] The case holding that a part of the door, wall, and other structure under Article 331 (1) of the Criminal Code constitutes damage to a building

[2] The case holding that in a case where a theft of property was done by intrusioning upon the entrance at night, and the entrance was physically damaged to lose its utility, if the lock was not opened because the lock was set up at the bottom of the entrance, but the lock was not opened due to the locking, which was installed at the bottom of the entrance, and the door was cut off from the entrance.

The summary of the facts charged of this case is as follows: "the defendant, around 22:50 on January 8, 2004, at the front of the victim's convenience store in the Namwon-si, the above opening door was damaged by breaking up the opening door of the entrance and intruded into the entrance, and then put the tobacco owned by the victim, which was displayed within the upper point, into the envelope, and cut off the tobacco owned by the victim by taking out the cash owned by the victim from the saving depository of the car rackter, into the main machine on the defendant's own."

According to the adopted evidence, the court below reversed the judgment of the court of first instance which punished the defendant as a special larceny, and convicted the defendant only of larceny included in the charged facts of this case on the ground that the defendant cannot be deemed to have damaged a part of the building on the ground that the defendant's act of walking the door in the course of sobing under the influence of alcohol alone cannot be deemed to have damaged the building.

2. The judgment of this Court

However, we cannot accept the above judgment of the court below.

Article 331(1) of the Criminal Act provides that a person who steals another's property by damaging a gate, a wall, or a part of a structure at night and impairing the places under Article 330 of the Criminal Act shall be punished by imprisonment with prison labor for not less than one year nor more than ten years. The term "part of a gate, a wall, or any other structure" under Article 331(1) of the Criminal Act means any disguised facility installed to prevent intrusion upon residence, etc. (see Supreme Court Decision 2003Do120, Feb. 28, 2003); and the term "damage and damage" means that the aforementioned disguised facility is physically damaged to lose its utility.

According to the evidence adopted by the court of first instance as cited by the court below, at the time of this case, the defendant thought that there was no person due to the extinguishment of the store, and tried to open the entrance of the store in hand, but the entrance was not opened because the entrance was set locked by the lock, which was attached at the bottom of the entrance. The defendant, who was walking the entrance, opened the entrance, caused the door door to be separated from the entrance, and the entrance was set off, and the defendant abused the victim's property by intrusion into the store, and thus, the defendant's act constitutes an act of physically damaging the disguised facility and thereby losing its utility.

Nevertheless, the lower court determined that the Defendant’s act does not constitute damage to disguised facilities under Article 331(1) of the Criminal Act, and punished the Defendant with the sole intention of larceny. In so doing, the lower court erred by misapprehending the legal doctrine on Article 331(1) of the Criminal Act or by misapprehending the facts contrary to the rules of evidence, and thereby adversely affected the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)