In a case where a person who commits habitual larceny as stipulated in Article 332 of the Criminal Act intrudes upon his/her residence as a means of committing a crime, whether such act constitutes separate crime of intrusion upon his/her residence (affirmative)

In principle, in a case where a thief has intruded upon his residence as a means of crime, it does not constitute a crime of habitual larceny, except for night intrusion larceny and special larceny as prescribed in Article 331(1) of the Criminal Act. In addition, Article 332 of the Criminal Act provides that an offender who habitually intrudes upon his residence shall be punished by increasing 1/2 of the punishment for the crime of habitual larceny (Article 331-2 of the Criminal Act) separately from a crime of habitual larceny (Article 33 of the Criminal Act) by means of habitual larceny (Article 332 of the Criminal Act), and a crime of habitual larceny (Article 331-2 of the Criminal Act), and a crime of habitual larceny (Article 33 of the Criminal Act) is separate from a crime of habitual larceny (Article 33 of the Criminal Act). Therefore, the above provision provides that an offender who habitually intrudes upon his residence by means of habitual larceny (Article 331-2 of the Criminal Act) shall not be punished by increasing the statutory punishment for the crime of habitual larceny.

Articles 37, 319(1), 329, 330, 331(1) and (2), 331-2, and 332 of the Criminal Act

Supreme Court en banc Decision 84Do1573 Decided December 26, 1984 (Gong1985, 283) Supreme Court Decision 2008Do7820 Decided November 27, 2008 (Gong2008Ha, 1851)

Defendant

Defendant

Attorney Lee Lee-young

Seoul Western District Court Decision 2015No43, 2015 Seocho100 decided May 15, 2015

The appeal is dismissed.

The grounds of appeal are examined.

In principle, in a case where a thief commits a crime of habitual larceny stipulated in Article 330 of the Criminal Act does not constitute a crime of habitual intrusion upon residence except for night larceny and special larceny stipulated in Article 331(1) of the Criminal Act; thus, in a case where a thief intrudes upon residence as a means of such crime, his act of intrusion upon residence does not constitute a crime of habitual larceny, and constitutes a separate crime of habitual larceny and substantial concurrent relation with larceny (see Supreme Court en banc Decision 84Do1573, Dec. 26, 1984). Furthermore, Article 332 of the Criminal Act provides that a person who habitually commits a crime of habitual larceny shall not be punished for a crime of habitual larceny (Article 330 of the Criminal Act) separately from a crime of habitual larceny (Article 331 of the Criminal Act) and a crime of habitual larceny (Article 331-2 of the Criminal Act). Therefore, the provisions of the Criminal Act provide that a person who habitually intrudes upon residence may not be punished for such crime.

Examining the evidence duly adopted and examined by the court below and the first instance court in accordance with the aforementioned legal principles, the court below, on the grounds stated in its reasoning, found the defendant who habitually committed the crime of larceny or attempted larceny, and invaded another person's residence during the daytime but did not reach the category of larceny as well as the crime of habitual larceny under Article 332 of the Criminal Act, and aggravated concurrent crimes against each of these crimes, is justifiable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules, or by misapprehending the legal principles on the number of crimes between habitual larceny and intrusion upon residence.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)