Time to commence the commission of night residence theft;

When a person's house was intruded at night for the purpose of theft of another person's property, it is considered that the criminal act of larceny has already started at night as stipulated in Article 330 of the Criminal Code at the stage of intrusion upon another's house.

Articles 330 and 25 of the Criminal Act

Defendant

Defendant

Attorney Park Jong-soo

Daegu High Court Decision 84No946 delivered on September 27, 1984

The appeal is dismissed.

The twenty-five days of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

As to the grounds of appeal by a public defender:

In a case where a person's residence was invaded at night for the purpose of theft of another person's property, it is deemed that at the stage of intrusion upon another person's residence, the criminal act called night intrusion larceny as stipulated in Article 330 of the Criminal Act has already been commenced. The party member's precedent (Supreme Court Decision 70Do507 delivered on April 28, 1970) did not feel the necessity of change. Thus, the theory of misunderstanding the judgment of the court below cannot be accepted from another opinion.

In addition, the first instance judgment maintained by the court below is a concurrent crime under the former part of Article 37 of the Criminal Act, which is a concurrent crime under which the nature of the crime and the circumstances of the crime are the most severe, and thus, the concurrent crime for the punishment prescribed in the robbery Rape No. 6 of the judgment of the court below is a concurrent crime under the latter part of Article 37 of the Criminal Act. Thus, the judgment does not affect the conclusion of the judgment

As to the Defendant’s ground of appeal

In this case, we cannot accept the argument to the same effect that the judgment of imprisonment with labor for less than 10 years cannot be deemed a legitimate ground for appeal on the ground of unfair sentencing under the Criminal Procedure Act.

Therefore, the appeal shall be dismissed, and part of the number of days pending trial shall be included in the principal sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices O Sung-sung(Presiding Justice)