[1] The time to commence the commission of night-time larceny

[2] Whether the commencement time of the commission of the crime of intrusion and the opening of the entrance when the entrance door is opened can be deemed as the commencement of the commission of intrusion upon residence (affirmative)

[1] In a case where a person’s residence was intruded at night for the purpose of theft of another’s property, it shall be deemed that the criminal act, such as night-time intrusion and larceny, as stipulated in Article 330 of the Criminal Act, has already been commenced at the stage of intrusion upon the residence

[2] The commencement of the crime of intrusion upon residence does not require the commencement of part of the elements of a crime against the will of a resident, manager, occupant, etc. or entry into a management structure, namely, an act of realizing part of the elements of a crime, but it is sufficient to start the act of including realistic risks leading to the realization of the elements of crime. Thus, the act of opening an entrance at the entrance under the intention of opening the entrance when opening the entrance is sufficient to be deemed to have been an act that includes objective risk of infringing on the peace and peace of the dwelling, and therefore, the commencement of the execution of the

[1] Article 330 of the Criminal Act / [2] Articles 319(1) and 330 of the Criminal Act

[1] [2] Supreme Court Decision 2003Do4417 decided Oct. 24, 2003 (Gong2003Ha, 2285)

Defendant

Prosecutor

Seoul Eastern District Court Decision 2006No236 Decided April 20, 2006

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court.

We examine the grounds of appeal.

In a case where a person’s residence was intruded at night for the purpose of theft of another’s property, it shall be deemed that the criminal act of nighttime intrusion larceny as prescribed in Article 330 of the Criminal Act has already started at the stage of intrusion upon the residence (see Supreme Court Decision 2003Do4417, Oct. 24, 2003).

According to the reasoning of the judgment below, the court below found that the defendant committed a theft as stated in the judgment of the court of first instance on the ground that the defendant was not able to commit the crime, and that the defendant committed a theft like the guilty part of the judgment of the court of first instance on the second floor of the above house, and that the defendant was able to take the door of 101 in his house where the victims were living. The court below found that the defendant was able to take the door of 102, 201, 202, 202, 301, 302, 302, and 302, and the first floor of the building adjacent to the above 102, 202, 202, 202, 301, and 302, and 302, when the door was temporarily set up and the entrance was not put in the front stage without the defendant's intention to enter the entrance at night.

However, the commencement of the crime of intrusion upon residence does not require a residential person, manager, occupant, etc. to enter a building which he/she performs or manages against the will of the residential person, manager, or occupant, or to realize part of the elements of a crime, but it is sufficient to commence the act that includes the realistic risk from the realization of the elements of the crime (see Supreme Court Decision 2003Do4417, Oct. 24, 2003). Thus, the act of opening the entrance under the intention of opening the entrance when the entrance is opened can be deemed as an act that includes the objective risk of infringing the peace and peace of the residence, and the execution of intrusion upon residence was commenced, and the entrance was merely a mere fact that the entrance was temporarily set off due to the external obstacle.

The judgment of the court below that held otherwise is erroneous in the misunderstanding of legal principles as to night-time intrusion and larceny, which affected the conclusion of the judgment, and the prosecutor's appeal pointing this out is with merit.

Therefore, 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 on the bench.

Justices Jeon Soo-ahn (Presiding Justice)