In a case where a person is discovered while breaking a gas pipeline on the outer wall of a necked building without a wall in the course of committing a crime, whether it constitutes the time when the commission of night-time larceny begins (negative)

In a case where: (a) the intention of theft for intrusion upon a specific residence does not simply attempt to bring the glass window in the aftermash or to open the glass window; (b) but merely colored the object of crime to be invaded while putting in and moving gas pipes installed on the outer wall of a Bara building without a wall, such act alone is merely a preliminary phase of night residence intrusion larceny; and (c) it cannot be readily concluded that such act falls under the case where the implementation of night residence intrusion larceny begins, i.e., when the actual risk of infringing the peace and peace of residence was commenced.

Articles 330 and 342 of the Criminal Act

Supreme Court Decision 99Do689 delivered on April 13, 1999, Supreme Court Decision 2003Do4417 Delivered on October 24, 2003 (Gong2003Ha, 2285)

Defendant

Maternity

Attorney Seolll-su

A defendant shall be punished by imprisonment for seven years.

The 89 days under detention prior to the rendering of this judgment shall be included in the above sentence.

Of the facts charged in the instant case, the charge of attempted larceny at night is acquitted.

On June 27, 2003, the defendant was released on June 30, 2005 and was exempted from the execution of his remaining sentence on August 15, 2005 in the Daegu District Court Kimcheon Branch on the grounds that he was sentenced to imprisonment for a violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof, and for whom he was released on June 30, 2005 in the Daegu Prison.

Around 04:00 on August 24, 2005, "(name omitted)" was intruded through a window that was not corrected in the residence of the non-indicted 202 victim (the non-indicted 22 years of age) located in the Si of Gu, Si, Si, 00, and used the victim's cell phone market price equivalent to KRW 583,00,00 in the victim's cell phone market price on the bed, and used the victim's cell phone market price at KRW 458,00,00, and used the victim's face in order to steal cash again, and had the victim take off clothes above the victim's upper part, but the victim tried to resist from locking from lock, but the victim she exceeded the victim's face by taking off the victim's face at least 3-4 times by hand and by taking off the victim's sexual intercourse with the victim's face, and the victim's face is out of the victim's face by taking off the victim's face and selling it for 1 day.

1. Statement corresponding thereto made by the defendant in this court;

1. Statement corresponding to the interrogation protocol of the accused prepared by the public prosecutor;

1. The statement of the Nonindicted Party in the public prosecutor’s preparation and the statement corresponding thereto;

1. Statement corresponding thereto among records of seizure of the preparation of an assistant judicial police officer;

1. Descriptions and images corresponding thereto, among investigation reports (attached to photographs of seized articles, estimates of damaged articles, and photographs) to prepare a judicial police assistant;

1. Statement that conforms to the part and degree of the injury as indicated in the judgment among the medical certificates with respect to the Nonindicted Party in preparation of a medical return for the doctor

1. Records of criminal records of the defendant prepared by the head of the Gu/U.S. police station;

1. Relevant Articles of the Act and selection of species;

Articles 9(1), 5(1), 30, and 297 of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof.

1. Aggravation of repeated crimes;

Article 3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes and the proviso to Article 42 of the Criminal Act.

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act ( normal consideration, such as the fact that an error is divided in depth)

1. Calculation of days of detention;

Article 57 of the Criminal Act

Judgment on the argument of mental disorder

In light of various circumstances, such as the background, means, and the Defendant’s act before and after the commission of the instant crime, the Defendant asserted that he was under the influence of alcohol at the time of the instant crime, and thus, the Defendant did not have the ability to discern things or make decisions under the influence of alcohol, and thus, the foregoing assertion cannot be accepted.

The acquittal portion

1. Summary of the facts charged

On May 21, 2006, at around 01:20 on May 21, 2006, the Defendant was released to a police officer who was at the patrol, and was at the same time, who was at the seat of Dogra in order to steal the goods, by breaking the gas pipe installed in Dogra by using the d referred gap in the human resources of the location from the front side of B-dong, B-dong, B-dong, B-dong, B-dong, B-dong, the Defendant was not aware of the fact that the window of Dogra was at the seat of the police officer who was at the patrol.

2. Determination:

A. According to the facts charged in the above facts charged, the Defendant: (a) was aware of a police officer in patrol in the course of a police officer in charge of night-time, taking place in order to steal an open house with the window up to the second floor through a gas pipeline installed on the lower wall of this case, without a wall; (b) however, there is considerable doubt as to whether the Defendant’s aforementioned act may be deemed to have commenced night-time, residential intrusion and larceny.

B. In other words, in a case where a person’s residence was invaded at night for the purpose of theft of another’s property, it is deemed that the commission of the criminal act, such as night intrusion and larceny, prescribed in Article 330 of the Criminal Act, has already been commenced at the stage of intrusion upon the residence (see Supreme Court Decision 9Do689, Apr. 13, 199). The commencement of the crime of intrusion upon residence does not require that part of the elements of the crime be carried out, namely, an act of entering a building which goes against the will of the dwelling owner, manager, occupant, etc. or enters the managed building, etc., and it is sufficient to deem that the act including a realistic risk leading to the fulfillment of the elements of the crime is commenced (see Supreme Court Decision 2003Do4417, Oct. 24, 2003)

However, if the Defendant’s act of this case was not simply an attempt to take a glass window back or to open a glass window with the intent of theft to intrude into a particular residence, but merely colored the subject of crime by putting in and moving the gas pipeline installed on the outer wall of a Bara building without a wall, such act alone is merely a preliminary phase of night-time residential intrusion theft, and further, it cannot be readily concluded that the Defendant’s act constitutes a case where the Defendant started to commit night residential intrusion larceny, namely, when he/she commenced a dangerous act that actually infringes on the peace of residence.

C. Ultimately, even if the Defendant’s instant act alone does not limit the commencement time of the commission of night intrusion and extends to the commencement of the commission of larceny including the realistic risk from realizing the constituent elements of the crime, it is difficult to evaluate that the Defendant’s act constitutes a direct and realistic danger causing the realization of the constituent elements of the crime of intrusion upon residence.

3. Conclusion

Therefore, this part of the facts charged is a case that does not constitute a crime and thus, is acquitted under the former part of Article 325 of the Criminal Procedure Act.

The following (Presiding Judge) Gu Resident Roster appointed by the judge