The prosecutor's appeal is dismissed.

Summary of Grounds for Appeal

In full view of the evidence submitted by the prosecutor by mistake of facts and misapprehension of the legal principles, the defendant could remove the toilet window, and find the fact that the defendant had displayed the article to be stolen by entering the house, but the court below judged that this part of the facts charged was not proven, and sentenced not guilty. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment

The sentence (two million won of fine) imposed by the court below on the defendant in an unfair sentencing is too unfortunate and unfair.

Judgment

Inasmuch as the time to commence the commission of larceny in relation to the assertion of mistake of facts and misapprehension of legal principles is the time when the commission of larceny begins closely infringes on another person’s de facto control over property, even if a person intrudes on another person’s residence for the purpose of larceny not at night but at night, if the crime of intrusion upon another person’s residence is established, it cannot be deemed that the commission of larceny begins, and thus, it does not constitute an attempted larceny crime (see Supreme Court Decisions 92Do1650, Sept. 8, 1992; 2009Do9667, Dec. 24, 2009). Furthermore, the prosecutor bears the burden of proving the facts charged in a criminal trial, and the conviction ought to be based on strict evidence with probative value, which makes the judge sure that the facts charged are true beyond a reasonable doubt (Article 307(2) of the Criminal Procedure Act), and even if there is no doubt as to the defendant’s interest in the crime, even if there is no such evidence.

(See Supreme Court Decision 91Do1385 delivered on August 13, 1991).

Judgment

According to the evidence duly adopted and examined by the court below, the defendant intruded the victim's house toilet through the toilet window and entered the house room.