In a case where a criminal who committed a crime such as habitual larceny as prescribed in Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes has invaded upon his/her residence as a means of the crime, whether the act of intrusion upon his/her residence constitutes separate crime of intrusion upon residence (negative)

In a case where a person who committed a crime such as habitual larceny as prescribed in Article 5-4 (6) 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 constitutes only one crime of habitual larceny, etc. as prescribed in the said Article, and separate crime of habitual larceny, etc. as prescribed in the said Article. In addition, in a case where the person who committed the crime of habitual larceny, etc., was injured by his/her residence for the purpose of habitual larceny, other than the crime, but does not reach the crime of habitual larceny, and even if he/she was found to have caused his/her habitual larceny, his/her intrusion upon residence does not constitute only one crime of habitual larceny, etc. as prescribed in the said Article, and constitutes a crime of habitual larceny, etc., separate from

Articles 37, 319(1), 329, and 342 of the Criminal Act; Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Supreme Court en banc Decision 84Do1573 Decided December 26, 1984 (Gong1985, 283) Supreme Court Decision 2012Do9386 Decided September 27, 2012

Defendant

Defendant

Attorney Kang Chang-won

Gwangju High Court Decision 2016No375 decided February 16, 2017

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

The grounds of appeal are examined.

In a case where a criminal who committed habitual larceny, etc. as prescribed in Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) has invaded upon his/her residence as a means of the crime, the act of intrusion upon his/her residence constitutes only one crime of habitual larceny, etc. as prescribed in the said Article, and does not constitute separate crimes of intrusion upon his/her residence. Moreover, in a case where the criminal who committed the crime of habitual larceny, etc. was injured for the purpose of habitual larceny, other than the crime, but is found to have committed the crime of habitual larceny, and even in a case where he/she was injured upon his/her residence, it does not constitute the crime of habitual larceny, etc. as incorporated into another crime of habitual larceny, etc., and constitutes only one crime of habitual larceny, etc. as prescribed in the said Article, and does not constitute the crime of

Nevertheless, the court below reversed the judgment of the court of first instance which judged that the part of the crime of intrusion on residence was not guilty on the ground that the Defendant committed a crime of intrusion on residence, on the facts charged that the Defendant did not habitually steals another person’s property or steals because of his/her lack of property, and determined that the crime of intrusion on residence was established separately, and convicted the Defendant of all the charges. The court below erred by misapprehending the legal principles on the crime of violation of Article 5-4(6) of the Specific Crimes Aggravated Punishment Act and failing to exhaust all necessary deliberations

Meanwhile, the lower court imposed a single sentence on the grounds that the facts charged for the crime of intrusion upon residence and the remaining facts charged constitute concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, should also reverse not only the facts charged but also the remainder of the facts charged.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Ko Young-han (Presiding Justice)