[1] The time when the crime of intrusion upon residence commences

[2] The case holding that it was not possible to initiate the commission of larceny at night, in case where it was discovered to police officers who was patroled by entering a gas pipeline to steal an object by intrusion into a multi-household house at night, and it was cut off to the police officer who was on patrol, and became out of the match

[1] Articles 319(1) and 330 of the Criminal Act / [2] Articles 25, 319(1), and 330 of the Criminal Act

[1] Supreme Court Decision 94Do2561 delivered on September 15, 1995 (Gong1995Ha, 3473) Supreme Court Decision 2003Do4417 delivered on October 24, 2003 (Gong2003Ha, 2285)

Defendant

Prosecutor

Attorney Kim Jong-soo

Seoul High Court Decision 2007No2268 decided January 17, 2008

The appeal is dismissed.

The grounds of appeal are examined.

1. The commencement of the crime of intrusion upon residence does not require the commencement of part of the elements of a crime, i.e., entering a residential building against the will of a resident, manager, occupant, etc. or into a management structure. However, it is required to start an act including a realistic risk leading to the realization of the elements of a crime by commencing specific acts for intrusion, such as attaching a correction device entering a residential place or opening a door, etc. (see Supreme Court Decision 2003Do4417, Oct. 24, 2003, etc.).

2. The court below found, based on its employed evidence, that the Defendant shot up gas pipes to steal the goods by reporting the fact that the second floor of the multi-household house in this case was destroyed by the Defendant, and that the first floor of the crime prevention room was removed from the police officer who was patroled in the state where the second floor was loaded with gas pipes between the first floor and the second floor, and found the Defendant not guilty of this part of the facts charged on the ground that the Defendant’s act alone cannot be deemed to constitute a case where the actual risk of infringing the peace of residence was commenced.

Examining the records in light of the above legal principles, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law in the misapprehension of legal principles as to the time of commencement of night-time larceny, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)