Defendant

Prosecutor

Scargs

Seoul Eastern District Court Decision 2006Ra186 Delivered on February 16, 2006

The prosecutor's appeal is dismissed.

1. Summary of the facts charged and the judgment of the court below

A. Summary of each of the facts charged in the instant case, including the attempted larceny at night

The Defendant entered a relatively easy multi-household building to open the entrance of each household, and tried to steal the property by intrusioning on the house in the frame, and upon the house located in the (number omitted) Dong 2, Gwangjin-gu, Seoul on January 2, 2006, around 02:00, the Defendant attempted to steal the property by opening the entrance of 101 where the victim Nonindicted Party 1 was living in the building through the whole entrance of the building and opening the entrance of 101 where the victim Nonindicted Party 1 was living in the building, but attempted to steal the property by intrusion on the house of each other at least seven times from the same day to 02:30 of the same day, as indicated in the list of crimes in the attached Form of the judgment of the court below. However, each of them attempted to steal the property by impairing the house of each other by the same method at least seven times in total, but did not have attempted to do so on the wind corrected by each entrance.

B. The judgment of the court below

First of all, the court below found the defendant not guilty of the above facts charged on the following grounds, on the premise that the execution of intrusion upon residence was commenced simply for the purpose of theft, and even if the defendant committed an attempted crime, there was a commencement of the commission of larceny at night.

(1) The Defendant consistently stated on the method of committing the crime that “The Defendant: (a) returned 10 or more houses around, and entered the entrance door to check whether the entrance door was opened at one house”; and (b) there is no trace that the Defendant possessed any tool to open the door ( even according to the facts itself, the Defendant committed the crime of “the Defendant’s attempt to steal property by intrusioning only the house which was not locked into the frame and cutting off the house).”

(2) Therefore, it is difficult to view that the Defendant had confirmed the entrance under the intention to force the opening of the entrance, even if the entrance was set off, and only it was merely a mere check of whether the entrance was corrected by hand without any intention to commit a crime against the opened house. In other words, the Defendant merely colored the object of the crime, and it is nothing more than that of the house and the door door door, and construing that the act constitutes the attempted crime of larceny in night time, even if by itself, constitutes the attempted crime of larceny, the scope of application of the provisions of the Criminal Act is excessively wide and unreasonable.

(3) Therefore, it is difficult to view that Defendant’s act was merely a preliminary stage of larceny at night, and further, Defendant started specific acts on the crime of larceny at night and started to commit larceny at night.

2. Summary of grounds for appeal by a prosecutor;

The commencement of the crime of intrusion upon residence is sufficient to commence the act including the realistic risk from the realization of the elements of crime, without requiring a part of the elements of crime to realize the elements of crime. If a defendant tried to open a door in a multi-household building with the intent of cutting down a house at night, for example, such as attaching a correction device entering a house or opening a door, it shall be deemed that the crime of intrusion upon residence has commenced. In a case where the defendant attempted to open a door in a multi-household building with the intention of cutting down a house at night under the intention of cutting off the object by intrusion on the apartment at night, if he attempted to open a door of the apartment under the intention of cutting off the object from the apartment at night, then it shall be deemed that the crime of intrusion upon residence has commenced (Supreme Court Decision 2003Do417 delivered on October 24, 2003). In light of the attitude of the precedent, if the defendant simply attempted to open the door in a multi-household building with the intention of cutting off object at night, it cannot be deemed as a preliminary act of crime and has any error.

3. The judgment of this Court

According to the evidence duly admitted and examined by the court below, the defendant entered the apartment house of this case where the victims were able to steals property by entering the entrance door, and left the entrance door of 101 of the building in hand. The defendant was 102, 201, 202, 301, 302 of the second floor, 301, 302 of the third floor, and 1st floor of the second floor of the building, and the second floor of the second floor of the building, and the defendant was failed to commit the crime because the door of the second floor of the above house was opened, and the defendant committed the theft as shown in the judgment of the court below.

In this case, if it is confirmed whether the entrance was set up by hand without an intention to enter the entrance, that is, if the entrance was set up without an intention to enter the entrance, it is nothing more than the color of the object of the crime. Therefore, the lower court’s determination that the Defendant’s act was merely the preliminary stage of night-time residential intrusion larceny and did not proceed to the commencement of the commission of the crime is justifiable, and there is no error of law by misapprehending the legal doctrine on the commencement of the commission of night residential intrusion larceny.

The Supreme Court precedents cited by the prosecutor in the grounds of appeal are the following cases: (a) in a case where: (b) the defendant committed a theft of an apartment with a locked window of an apartment using a drone, etc.; and (c) attempted to open the window of an adjacent apartment building by hand, etc. to open the window and open it to open it; and (d) the defendant was aware of it to the apartment guard; and (b) there was a commencement of the execution of night-time intrusion theft; and (c) it is not appropriate to invoke the case on the other hand

4. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Yoon Nam-nam (Presiding Judge)