The prosecutor's appeal is dismissed.

1. In a case where it is reasonable to see that an intrusion upon another person’s residence was a thiefy of larceny even when the act of intrusion upon residence was committed during the daytime, the crime of intrusion upon residence should be separately established in addition to habitual larceny. However, the lower court determined that, by misapprehending the legal doctrine, the act of intrusion upon residence was absorption into a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) and acquitted the person not guilty.

2. Determination

A. The summary of this part of the facts charged and the facts charged of this part of the judgment of the court below are as follows: around 15:50 on August 26, 2016, the defendant invadeds upon the victim H's residence located in the same subparagraph of G apartment in Seoul Special Metropolitan City, Nowon-gu, Seoul. The court below found that this part of the facts charged was acquitted in accordance with the former part of Article 325 of the Criminal Procedure Act on the ground that this part of the facts charged was not established on the ground that the crime of larceny was committed as a means of habitual larceny, which found the defendant guilty

B. Article 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 13717, Jan. 6, 2016; hereinafter “former Specific Crimes Act”) provides that a person who habitually commits a crime under Articles 329 through 331 of the Criminal Act, or attempts to commit the crime, shall be punished by imprisonment for life or for not less than three years. The purport of the provision is to punish a person who habitually commits a crime of larceny, night residence theft and special larceny, or attempted to commit such crime by emphasizing the habitual nature of the wall of the crime, as an offense involving habitual crimes, including the crime, if the provision is to be punished as one, and the same statutory punishment is to be aggravated by treating the house equally as a requirement for habitual larceny, insofar as it does not require intrusion even if it does not require intrusion.