The prosecutor's appeal is dismissed.

1. In a case where a criminal who committed a crime, such as habitual larceny, prescribed in Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment of Specific Crimes”), committed a crime, other than the crime, intrudes upon his/her residence for the purpose of larceny, but does not reach the theft, and is in intrusion upon his/her residence, the act of intrusion upon residence constitutes a separate crime of intrusion upon residence, rather than absorbing the crime of habitual larceny.

Of the facts charged in the instant case, the act of intrusion upon residence does not constitute a separate crime of intrusion upon residence, absorbing the specific crime aggravated (thief).

The judgment of the court below is erroneous in the misapprehension of legal principles.

2. In a case where a person who committed a crime, such as habitual larceny, prescribed in Article 5-4 (6) of the Specific Crimes Aggravated Punishment Act intrudes upon his/her residence as a means of the crime, only one crime such as habitual larceny, etc., which is incorporated into a crime of habitual larceny as prescribed in the said Article, does not constitute a separate crime of intrusion upon his/her residence. Moreover, the Prosecutor’s assertion is without merit, as long as the person who committed the crime of habitual larceny, etc., committed intrusion upon his/her residence for the purpose of habitual larceny, other than the crime, but was found to have committed the crime of habitual larceny, and even in a case where he/she was found to have been aware of habitual larceny, such act of intrusion upon residence does not constitute only one crime of habitual larceny, etc. as prescribed in the said Article, and constitutes a crime of intrusion on residence separately from the crime of habitual larceny, etc. (see Supreme Court Decision 2017Do4044, Jul. 11, 2017).

3. The appeal by the prosecutor of the conclusion is without merit and is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.