Defendant

Both parties

Kim -Spot (prosecution), and a completion date (public trial)

Attorney Kim Jong-hwan (Korean)

Applicant for Compensation

Seoul Western District Court Decision 2014Ra1731 Decided December 24, 2014

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Seized evidence 1, 4, 5, 7 through 10 shall be confiscated.

An applicant for compensation shall be dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

The Defendant did not commit the crime indicated in the remainder of the facts charged except for the theft against Nonindicted Party 1 (hereinafter “instant crime”). Around June 2014, the Defendant returned to the place where the instant crime was committed against the Defendant due to Nonindicted Party 2’s accurate domicile of Nonindicted Party 2 against the Defendant. The Defendant stated in the lower court court that the Defendant was aware of his/her identity as the Defendant himself/herself.

Therefore, the lower court found the Defendant guilty of larceny on June 1, 2014 and June 3, 2014, inasmuch as there was no evidence as to the instant crime committed during the Japanese War, the lower court found the Defendant guilty.

2) Unreasonable sentencing

The sentence of the lower court (two years of imprisonment) shall be too unreasonable.

(b) Prosecutors;

1) Legal principles

In a case where a criminal who committed a crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) committed an intrusion upon his/her residence as a means of the crime, the lower court deemed that the act of intrusion upon his/her residence does not constitute a separate crime from the crime of habitual larceny, etc., and determined that the crime of intrusion upon his/her residence does not constitute a separate crime. However, the lower court erred by misapprehending the legal doctrine regarding the crime of intrusion upon residence among the facts charged in the instant case, inasmuch as the crime of habitual larceny and intrusion upon residence was committed together, the lower court’s judgment is an ex officio judgment by the full bench, and as long as the crime of habitual larceny and intrusion

2) Unreasonable sentencing

The sentence of the court below is too uneasible and unfair.

2. Ex officio determination

Before determining the grounds for appeal by the Defendant and the prosecutor, the prosecutor ex officio examined the case in question, and then applied for permission to change the name of the crime from "violation of the Act on the Aggravated Punishment, etc. of Specific Crimes to "Habitual thief", and Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes to "Article 332 of the Criminal Act" among applicable provisions of this Act. Since this court permitted this, the judgment of the court below which was based on the initial indictment cannot avoid reversal.

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, even if there are such reasons for ex officio destruction, and thus, it should be judged on this (in contrast, the prosecutor's assertion of misunderstanding of legal principles on April 24, 2015 submitted by the prosecutor is premised on Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, so it is unnecessary to separately

3. Judgment on the defendant's assertion of mistake of facts

Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and investigated by the court below, the defendant committed the crime of this case as stated in the facts constituting the crime in the judgment below. Thus, the above assertion by the defendant is without merit.

① During the period from June 1, 2014 to June 7, 2014, when the instant crime was committed, the Defendant was spreaded into a nearby CCTV at the time and place where the time and place were very close. In particular, the Defendant was posted on CCTV in the time and place that he/she went back when he/she was discovered that he/she had intruded into his/her residence, and that he/she had escaped when he/she was discovered.

② Although the Defendant asserts that he had had a scarcity in order to find Nonindicted 2, who is one of his own debtor, the Defendant had a scar club. However, in light of the fact that Nonindicted 2’s dwelling place is not a scar club but a scar club, that he was aware of his personal information, contact information, address, etc., his debtor, that he was lost and failed to present a disposition document, such as a loan certificate, and that the statement of Nonindicted 2’s dwelling place is reversed due to the annual scarb, etc.

③ The appearance of a criminal who had observed a criminal at the time of the crime in the Japanese War of this case is consistent with the appearance of the defendant who was marked in CCTV at the time of the crime in this case.

④ On June 1, 2014, the Defendant: (a) purchased precious metals, etc. from the Defendant from the Defendant on the same day to Nonindicted 3; and (b) sold one clock on the same day to the same kind of log belt that the applicant for compensation was stolen; (c) it is difficult to see that the Defendant’s visibility sold by the Defendant is equal to the characteristics of the victim’s usual five minutes prior to the sale; (d) the Defendant asserted that the visibility, which was returned from Nonindicted 3, was lost (Nonindicted 3, which was purchased from the Defendant, was also proven to have been confirmed in the timely appropriation). Meanwhile, upon the Defendant’s arrest, the Defendant attempted to destroy evidence, such as: (a) the Defendant and Nonindicted 3 eliminated all transaction details with the Defendant and made a statement that he was ambiguous to the Defendant.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment of the court below is reversed without examining each of the grounds for ex officio reversal and the prosecutor's argument on unfair sentencing. It is again decided as follows.

Criminal Power

On September 9, 1994, the Defendant was sentenced to imprisonment for one year with prison labor for special larceny at the Seoul Northern District Court on May 16, 200, imprisonment with prison labor for one year and two months at the Seoul Central District Court on May 16, 200, and one year and three months at the Seoul Central District Court on July 14, 2005, with prison labor for larceny, etc. on December 21, 2007, and completed the execution of the sentence in the Ansan Prison on August 14, 2013.

Criminal facts

The Defendant: (a) rented k9 car to steal precious metals, etc. against abandoned houses; (b) had string the house, and had the residents of the Seodaemun-gu Scar-dong Multi-household in the weekly time zone into the inside through a string door or a non-Correctioned window, etc., with the intent to steals precious metals, etc.

1. The crime committed on May 20, 2014;

On May 20, 2014, around 14:00, the Defendant stolen the victim Nonindicted Party 1, who was placed in the ○○ apartment (location omitted) of Eunpyeong-gu Seoul Metropolitan Government (dong lake omitted), with one half of the amount equivalent to KRW 20 million at the market price of the victim Nonindicted Party 1, who was located in the ○○ apartment (dong lake omitted).

2. The crime committed on June 1, 2014;

From 18:00 on June 1, 2014 to 19:40, the Defendant stolen the property worth 12,000,000,000 won in total with one clock, one half of the shock machine amounting to 3.4 million won at the market price, one half of the shock machine amounting to 3.4 million won at the market price, one 1,000 won in cash, and one 12,000,000 won in total, which had been affected by the victim’s intrusion with a bend window among the absence of the applicant.

3. The crime committed on June 3, 2014.

A. On June 3, 2014, at around 12:30 to 13:30, the Defendant: (a) invaded by the victim snow ○○○, who was in Seodaemun-gu 25-O and 201 (Ihee-dong) with a bend window among the absence, and had a physical color, such as entering the room of the victim snow ○○○○, the birth of the birth of the victim, and leaving the luxane on his/her book, but failed to discover stolen objects.

B. On June 3, 2014, around 13:00 to 13:30, the Defendant: (a) went through the toilet window in order to steals property from the victim’s house located in Seodaemun-gu 25-○, Seodaemun-ro 25-○, 301 (Shee-dong); (b) but (c) when the victim’s house, who is a bendter, went to the house, the Defendant went out through the toilet.

4. The crime committed on June 7, 2014;

On June 7, 2014, at around 13:25, the Defendant intruded the victim Hu○○○○’s house located in Seodaemun-gu 27-ro, Seodaemun-gu, 27-ro, 402 (Shee-dong, ○○○○○) with a view to stealing the property, but when the Defendant was discovered to the Hu○○○○ who was in the house in a brupted house, the Defendant escaped through the brush.

Accordingly, the defendant invadeds on the residence of the victims, and habitually stolen or attempted to steals another's property.

The summary of the evidence recognized by this Court is as shown in the summary column of the evidence in the judgment below, except for the addition of the "WoO's Statement", and therefore, it is cited by Article 369 of the Criminal Procedure Act as it is.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 332 of the Criminal Act, Article 329 of the Criminal Act (Habitual thief, Selection of Imprisonment) and Article 319 (1) of each Criminal Act.

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes with Punishment concerning Habitual Theft)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Dismissal of application for compensation;

Articles 32(1)3 and 25(3) of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings (the scope of liability for damages is not clear)

As seen earlier, since the Defendant invadeds upon the victim’s residence in order to steals property, it is reasonable to view that the Defendant’s act of intrusion upon the victim’s residence is also the expression of larceny and habitual nature. However, Articles 332 and 329 of the Criminal Act do not include any provision regarding the act of intrusion upon the residence in the daytime, unlike Articles 330 and 331(1) of the Criminal Act, since the Defendant’s act of intrusion upon the residence does not constitute concurrent crimes, the crime of habitual larceny and intrusion upon the residence of the victim is established separately.

On the other hand, the Supreme Court precedents held that "In the event a person who commits habitual larceny, etc. prescribed in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes has invaded upon his/her residence as a means of the crime, the act of intrusion upon his/her residence is incorporated into the crime of habitual larceny, etc., and only one crime of habitual larceny, etc. prescribed in the above Act is established, and does not constitute the crime of habitual larceny, etc., separate from the crime of habitual larceny, etc. prescribed in the above Article. In addition, the crime of habitual larceny, etc., committed the crime of habitual larceny, etc., in addition to the crime, and even if the crime of habitual larceny, etc., committed the crime of habitual larceny, etc., but it is not deemed that the crime of habitual larceny, etc., prescribed in the above Article 329 of the Criminal Act, does not constitute a crime of habitual larceny, etc., separate from the crime of habitual larceny, etc. (see Supreme Court Decision 2012Do9386, Sep. 27, 2012>

① Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes also treats simple larceny which does not constitute a constituent element of intrusion upon residence as one of the constituent elements of habitual night larceny, and treats it equally as one of the constituent elements of intrusion upon residence, and aggravated punishment is the same statutory penalty. Article 332 of the Criminal Act furthers punishment by 1/2 of each punishment specified in the crime of simple larceny, night residential intrusion larceny, and special larceny. Therefore, Article 332 of the Criminal Act cannot be deemed to be treated equally as a simple larceny which does not constitute a constituent element of intrusion upon residence and habitual residential intrusion larceny which is a constituent element of intrusion upon residence. Ultimately, where a criminal who habitually commits simple larceny intrudes upon residence as a means of larceny, the evaluation of the illegality of intrusion upon residence does not include the evaluation of the constituent elements of Articles 332 and 329 of the Criminal Act, and thus, the crime of intrusion upon residence should be established separately.

② In a case where the crime of habitual larceny stipulated in Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes is established separately from the crime of habitual larceny. In a case of habitual night intrusion which habitually intrudes upon residence at night, one of the crimes prescribed in the above Article of the Act is applicable within the statutory term for the larceny. On the other hand, in a case of habitual night intrusion which habitually intrudes upon residence during night, if the theft is committed, the crime prescribed in the above Article of the Act and the crime of intrusion upon residence are concurrent crimes and the crime of intrusion upon residence within the scope of the statutory term for the larceny. Therefore, there were problems in which the punishment for the intrusion upon residence, which cannot be deemed to be more severe than the one for night intrusion, is more severe than the one for the larceny at night.

However, habitual larceny stipulated in Articles 332 and 329 of the Criminal Act, even if the crime of habitual larceny is established separately, there is no imbalance between the above applicable sentences. In other words, in the case of habitual night intrusion larceny which habitually intrudes upon residence at night and has been stolen at night, punished by imprisonment for not more than 15 years pursuant to Articles 332 and 330 of the Criminal Act. On the other hand, in the case of larceny who habitually intrudes upon residence during the daytime, it would be punished by imprisonment for not more than 12 years in accordance with Articles 332, 329 of the Criminal Act, Article 329 of the Criminal Act, Article 319(1) of the Criminal Act, the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act.

The Defendant led to the crime of larceny against the victim non-indicted 1, and agreed with the victim non-indicted 1, etc. shall be considered as favorable to the Defendant; however, the Defendant denies and does not reflect all the remainder of the crime; the victims other than the victim non-indicted 1 do not agree with the victim; the crime of this case is considerably poor in light of the number and frequency of the crime due to the crime committed habitually during the period of the same repeated repeated crime; the Defendant has a number of penalties including the same type of punishment power; the Defendant has the age, character and behavior, environment, the background and consequence of the crime of this case, and the circumstances after the crime, etc.; and all of all of the sentencing factors specified in the arguments of this case shall be determined as ordered.

Judge Park Jong-dae (Presiding Judge)