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Main Issues
[1] The time when the crime of intrusion upon residence commences
[2] Whether an act of taking the first race in order to verify whether a person exists in an apartment subject to intrusion constitutes the commencement of the crime of intrusion upon residence (negative)
[Reference Provisions]
[1] Article 319(1) of the Criminal Act / [2] Article 319(1) of the Criminal Act
Reference Cases
[1] Supreme Court Decision 2003Do4417 decided Oct. 24, 2003 (Gong2003Ha, 2285) Supreme Court Decision 2006Do2824 decided Sep. 14, 2006 (Gong2006Ha, 1770)
Escopics
A and one other
upper and high-ranking persons
Prosecutor
Defense Counsel
Attorney B
Judgment of the lower court
Ulsan District Court Decision 2007No880 decided January 25, 2008
Text
All appeals are dismissed.
Reasons
We examine the grounds of appeal.
The commencement of the crime of intrusion upon residence does not require the act of entering a building which is to be carried out or managed against the will of a resident, manager, occupant, etc., or the act of partially realizing the elements of a crime, but it is sufficient to start the act including the realistic risk leading to the realization of the elements of a crime (see, e.g., Supreme Court Decisions 2003Do4417, Oct. 24, 2003; 2006Do2824, Sept. 14, 2006). However, in order to verify whether a person is an apartment subject to intrusion, it cannot be deemed that the act of taking the first class of the house starts including the realistic risk of intrusion, or that the act of including the objective risk of infringing the de facto peace of the residence was conducted.
According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance which acquitted the defendants on the ground that the defendants did not have any error in the process of fact-finding of the court below, that is, the defendants did not have any error in the course of fact-finding of the court of first instance on the ground that the defendants did not have any error in the process of fact-finding of the court of first instance on the ground that the records are inconsistent with the above legal principles, and that the above judgment is consistent with the above legal principles and it is not erroneous in the misapprehension of law as otherwise alleged in the grounds of appeal.
Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Ill-sook (Presiding Justice)