(영문) 대구지방법원 2017.12.21 2017노4427 | 리걸엔진

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(영문) 대구지방법원 2017.12.21 2017노4427

절도등

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

Reasons

1. The summary of the grounds for appeal is that the defendant takes the hand out from the door door to cut off the hand, and even in a case where a part of the body enters another's building, the building intrusion is established. Thus, the judgment of the court below which acquitted the defendant as to the infringement of the structure is erroneous by misunderstanding the facts and misunderstanding the legal principles.

2. Determination

A. On July 30, 2017, the Defendant: (a) around 10:07, on the charge of this part of the facts charged, was in the container located in Gumi-si G, Gumi-si; (b) the victim H did not correct the entrance; and (c) intruded the structure managed by the victim by having the victim stolen another’s property from the surrounding dry field, without correcting the entrance.

B. The statement of the victim H, which is almost the only evidence corresponding to the above facts charged in the judgment of the court below, merely judged that the defendant put on the container side, and the above evidence alone infringed upon the above location on the date stated in the above facts charged.

For the reason that it is difficult to conclude this part of the facts charged, the lower court acquitted.

(c)

The crime of intrusion upon a house is a de facto legal interest to protect the peace of the house. Thus, since the whole body of the actor is not necessarily established by entering another person's residence which is the purpose of the crime, but only part of the body was entered into another person's residence.

Even if a resident has committed a crime to the extent of undermining the peace of the de facto residence, it shall be deemed that the requirements for the composition of the crime are satisfied. Therefore, the intent of the crime of intrusion is sufficient if there is a perception that the whole body enters another person's residence, not necessarily a perception that the whole body enters another person's residence, but a perception that part of the body enters another person's residence is sufficient.

In fact, even though part of the body entered into the dwelling, it does not reach the degree of harm to the peace of the dwelling.

유사 판례

-대법원 1995. 9. 15. 선고 94도2561 판결

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