Whether intrusion upon residence constitutes a separate crime in case of habitual theft (negative)

In the event of habitual theft, intrusion upon residence committed by habitual persons is not a separate crime, but it is included in the constituent facts of Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

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

June 28, 1983, 83Do1068 decided Jun. 28, 198 (Gong710, 1158)

Defendant

Incheon District Court (83 Gohap406, 83 reduction/28)

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for two years.

One hundred and forty days of detention days prior to the declaration of the original judgment shall be included in the above sentence.

The appeal against custody case of the requester for custody is dismissed.

The first point of the grounds of appeal by the defendant and the respondent for appeal against the defendant and the defendant (hereinafter referred to as the "defendants") and the grounds of appeal by the state appointed defense counsel are without any direct evidence, and the court below found the defendant guilty all of the facts charged of this case to have erred by misunderstanding the remaining facts in violation of the rules of evidence and thereby affecting the conclusion of the judgment. The second point of the grounds of appeal by the defendant is that the sentence of the court below against the accused case is too unfair and unfair, and that

Therefore, according to the fact-finding of the defendant's case and the evidence duly examined and adopted by the court below on the grounds of appeal against the custody case, all facts of each crime and the requirements of protective custody can be recognized in the judgment of the court below. However, prior to the judgment on the grounds of appeal of unfair sentencing, the judgment of the court below on the grounds of unfair sentencing does not constitute a separate crime, but is included in the constituent facts of Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes. Thus, the court below, which puts the defendant into a concurrent crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of Specific Crimes, against the defendant's act at the time of a judgment of the court below, cannot maintain the part of the defendant's case.

Therefore, the appeal against the custody case of the defendant is without merit. Accordingly, it is dismissed in accordance with Article 42 of the Social Protection Act and Article 364(4) of the Criminal Procedure Act. The part of the judgment below against the accused case is reversed ex officio and it is decided as follows.

Since the relationship between facts constituting an offense recognized by this court and the evidence thereof is the same as the time of original adjudication, they are quoted in accordance with Article 369 of the same Act.

The defendant's act of holding as a whole falls under Articles 5-4 (1) and 329 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 329 of the Criminal Act, since the defendant has been convicted of repeated crimes and the defendant has been convicted of committing repeated crimes in accordance with Article 35 (2) of the Criminal Act, there are grounds for taking into account the circumstances such as the fact that the defendant is able to engage in repeated crime within the limit of the proviso of Article 42 of the same Act pursuant to Article 35 (2) of the Criminal Act, and the defendant is able to engage in repeated crime in depth. Thus, the defendant shall be punished by imprisonment for two years within the scope of the term of punishment reduced by discretionary punishment pursuant to Articles 53 and 55 (1) 3 of the same Act,

It is so decided as per Disposition for the above reasons.

Judges Lee Jae-soo (Presiding Judge)