The number of crimes committed by a thief who committed a crime of violation of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes in cases where he/she had his/her residence in the daytime as a means of such crime

Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes requires that the act constitutes criminal records and repeated crimes, while Article 5-4(1) of the same Act requires habitual crimes, the requirements are different from each other. In addition, in cases where a thief has intruded upon his/her residence as a means of crime, it does not constitute the elements of larceny in general except night, residence and larceny under Article 330 of the Criminal Act and special larceny under Article 331(1). In addition, in cases where a thief has invaded upon his/her residence as a means of crime, the act of intrusion upon his/her residence constitutes a crime of intrusion upon his/her residence, separate from that of larceny, and constitutes a substantial concurrent relationship with the crime of larceny. Therefore, the crime of intrusion upon residence under Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes is established separately.

Article 319(1) of the Criminal Act, Article 5-4(1) and (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes

Supreme Court en banc Decision 84Do1573 delivered on December 26, 1984 (Gong1985, 283)

Defendant

Defendant

Attorney Use-at-law

Seoul Western District Court Decision 2008No666 decided August 21, 2008

The appeal shall be dismissed. The ninety-five days out of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes requires that the act constitutes criminal records and repeated crimes, while Article 5-4(1) of the same Act requires habitual crimes, the requirements are different from each other. In addition, in a case where a thief commits an intrusion upon his/her residence as a means of larceny does not constitute an element of larceny, since his/her intrusion upon his/her residence does not constitute an element of larceny, the act of intrusion upon his/her residence does not constitute a crime of larceny, and constitutes a separate crime of larceny and a substantive concurrent relationship with the crime of larceny (see Supreme Court en banc Decision 84Do1573, Dec. 26, 1984).

In light of the above, it is justifiable for the court below to recognize the crime of intrusion on residence under Article 319 of the Criminal Act as well as the crime of violation of Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes against the defendant who committed the crime of larceny by intrusion on residence in the daytime and maintain the judgment of the court of first instance that aggravated concurrent crimes against each of these crimes. There is no error of law by misunderstanding the legal principles as to the number of

2. As to other grounds of appeal

In light of the records, the court below’s rejection of the Defendant’s assertion that the Defendant was in a state of mental disability under the influence of alcohol at the time of committing the instant crime by taking full account of the evidence in its reasoning is justifiable. Moreover, the remainder of the grounds of appeal is not a legitimate ground of appeal because it erred by selecting evidence and

3. Conclusion

Therefore, the appeal is dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)