[1] The time of commencement of the commission of larceny (=the time of smuggling), and the standard for determining whether to commence the commission of larceny

[2] The case holding that the defendant's act of stealing the building materials, etc. in the new site of apartment construction does not constitute the commencement of special larceny in the underground inside of the apartment that is newly constructed through the window, after entering the construction site of the above construction site with his accomplices, does not constitute the commencement of special larceny

[1] Articles 25, 329, and 342 of the Criminal Act / [2] Articles 25, 331(2), and 342 of the Criminal Act

[1] Supreme Court Decision 82Do2944 delivered on March 8, 1983 (Gong1983, 693), Supreme Court Decision 85Do464 delivered on April 23, 1985 (Gong1985, 818), Supreme Court Decision 86Do256 delivered on December 23, 1986 (Gong1987, 278), Supreme Court Decision 92Do1650 delivered on September 8, 1992 (Gong192, 29255), Supreme Court Decision 98Do3077 delivered on September 17, 199, Supreme Court Decision 2009Do9667 delivered on December 24, 2009 (Gong2010, 29292)

Defendant

Prosecutor

Incheon District Court Decision 2009No3048, 3719 Decided December 3, 2009

The appeal is dismissed.

The grounds of appeal are examined.

The commencement time of larceny is when the act of infringing another person's de facto control over property begins (see, e.g., Supreme Court Decisions 86Do2256, Dec. 23, 1986; 98Do3077, Sept. 17, 1999); and whether the commencement of larceny begins or not must be determined by comprehensively considering the method, mode, surrounding circumstances, etc. of the crime in a specific case (see Supreme Court Decision 82Do2944, Mar. 8, 1983).

On May 20, 2009, the court below reversed the judgment of the first instance court convicting the Defendant of this part of the charges for special larceny, on the following grounds: (a) inasmuch as there is no evidence to prove the fact that the Defendant, in collaboration with the unwritten accomplice, attempted to steals the pipes, which are materials used for building works owned by the victim on the site of the new apartment construction project, at the site of the new apartment construction project; and (b) attempted to steals the pipes, which are materials used for building works owned by the victim on the part of the victim on May 20, 209; (c) in the construction site of this case, stolen the building materials, etc. located in the construction site of this case, and carried them into the construction site; and (d) carried them into the underground room of the apartment constructed through the window, and found and accessed the pipes in the above underground room, and there is no actual control of the victim on the above underground pipe.

In light of the above legal principles and records, we affirm the above judgment of the court below as just, and there is no error in the misapprehension of legal principles as to the punishment of larceny, as otherwise alleged in the ground of appeal.

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

Justices Shin Young-chul (Presiding Justice)