The crime of intrusion upon residence for the purpose of larceny and special larceny constitute a crime of the same or similar kind under the Social Protection Act.

If the defendant intrudes on another's residence with the intention to steals another's property and damages glass, but did not commence the commission of larceny as the victim was discovered, the intrusion upon the residence belongs to the same or similar crime when comprehensively considering the special larceny and nature of the previous criminal, the means and method of the crime, the tendency of the crime, the type of the crime, etc.

Article 6 (2) of the Social Protection Act

Defendant and Appellant for Custody

Prosecutor

Attorney Shin Chang-dong (Korean)

Seoul High Court Decision 81No3123,81No505 Decided March 5, 1982

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the judgment of the court below, the court below acknowledged that the defendant was sentenced to imprisonment with prison labor for a short term of 6 months for special larceny in the Dong branch of the Seoul Criminal District Court on May 5, 1972, 6 months for a short term of 8 months for a short term of 10 months for a special larceny in the Seoul Criminal District Court on March 22, 1973, 5 years for a short term of 8 months for a long term of 10 months for a special robbery in the Seoul Criminal District Court on April 26, 1974, and 1 year for a special robbery in the Dong branch of the Seoul District Court on March 20, 1980, and completed the enforcement of the above sentence on March 9, 1981. The court below rejected the prosecutor's request for custody on the premise that the defendant's request for custody was a same or similar crime as provided in Article 6 (2) of the Social Protection Act.

2. According to Article 6 (2) of the Social Protection Act, the term "a crime of the same or similar type of crime" in Article 5 of the same Act means cases falling under any of the following subparagraphs in relation to a crime before and after, taking into account the nature of the crime, the means and methods of the crime, the tendency of the crime, and the type of the crime, etc., and it is recognized that the crime belongs to the same or similar crime. Thus, as recognized by the court below, if the victim was discovered to have invaded upon his residence for the purpose of theft of another person's property, but the victim did not commence the commission of larceny because he was discovered, the above intrusion upon his residence constitutes a crime of the same or similar kind of crime, considering the nature of the crime, the means and methods of the crime, the tendency and methods of the crime, the types of the crime, etc.

Therefore, there is an error of misunderstanding the legal principles on the same or similar crime under the Social Protection Act that the court below dismissed the claim for protective custody of this case due to its dissenting opinion, and it is obvious that the above illegality affected the judgment, and therefore, it is reasonable to discuss it

3. Therefore, the judgment of the court below is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)