In case of intrusion upon another's residence for the purpose of larceny during day, the time when the commission of larceny commences (=the time when the act of larceny is committed)

Since the commencement time of larceny is deemed to be the time when the act of infringing on another person’s de facto control over property begins, even if intrusion upon another person’s residence for the purpose of larceny was not at night, if it was not yet committed before commencing the act of larceny, it cannot be deemed that only the crime of intrusion upon residence is established, but also the crime of larceny is not committed.

Article 342 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

A

Defendant and Appellant for Custody

Attorney B

Busan High Court Decision 92No501,92No24 delivered on June 17, 1992

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

The grounds of appeal by the defendant and the respondent for defense (hereinafter referred to as the "defendant") and his defense counsel are examined.

1. The time when the commission of larceny begins is considered to be the time when the act of larceny begins to infringe on another person’s de facto control over the property. Thus, even if the person intrudes on another person’s residence for the purpose of larceny during a day other than night, if it is not yet taken place, the crime of intrusion upon another person’s residence is established, and it cannot be deemed that the commission of larceny begins, and thus, the crime of attempted larceny is not established.

In this case, the criminal facts of the defendant and the facts supporting the claim for custody, which were acknowledged by the court below, were committed by the defendant on December 18, 191, with the intention of theft of money and valuables by the defendant to the 3th floor of the house through the stairs. The victim, who was enrolled in the 2nd floor to the 3rd floor, was asked about whether the victim D was the victim or not, and the victim got off to the stairs by asking about whether the victim was the victim as soon as possible. The victim was aware of the fact that the victim was never the victim, and the money and valuables to be stolen by going through the kitchen of the second floor through the kitchen of the house and the kitchen of the second floor of the house were removed from the water, and the intention was not achieved.

However, according to the records, the defendant denies the fact-finding plan. According to the victim's testimony of the first instance court employed by the court below, the defendant was found to have been released from the plan when the victim gets a prompt, second floor, and passed through the kitchen in front of the kitchen, and thus, it is not clear whether the defendant had infringed on the plan, but the defendant would go against the plan, and even if there is no doubt as to whether the defendant would go to the physical color of the article to be stolen by entering the plan. If sufficient time has passed from the time when the defendant entered the plan to be discovered to the victim until the victim was discovered, the defendant's physical color act was committed for the stolen purpose. However, even if there is no time to do so, it cannot be concluded that the defendant might not be viewed as having come out by displaying the article to be stolen only with his own secret from the plan, unless there is sufficient time to do so.

The court below's finding that the defendant was aware of the money and valuables to be stolen by the testimony of the above witness only without clarifying this point is guilty of violating the law that affected the conclusion of the judgment by neglecting the value judgment of evidence and failing to exhaust all necessary deliberations, and therefore the argument on this point is justified.

2. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)