Defendant

Prosecutor

Water for refining

Attorney Kim Kim (National Election)

Seoul Northern District Court Decision 2010Gohap215, 252 (Consolidated), 2010Gohap17 (Consolidated) Decided October 15, 2010

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Part of the defendant's case

1) Legal principles

Article 330 of the Criminal Code provides that theft by night is established when the act of theft was committed at night, regardless of whether the act of intrusion by room was committed at night. Thus, the defendant's act of theft by intrusion into the room room at night by intrusion into the room room at night, and then theft by intrusion into the guest room at night constitutes night intrusion, and constitutes larceny by night.

Nevertheless, the judgment of the court below which acquitted the Defendant of the larceny of the charge of this case at night, on the premise that the act of theft by intrusion upon residence at night shall be committed, but the crime of larceny by night as stipulated in Article 330 of the Criminal Act is established, is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

2) Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is too unhued and unfair.

B. Part of medical treatment and custody case

If a prosecutor files an appeal against a prosecuted case, the prosecutor is deemed to have filed an appeal against a medical treatment and custody case pursuant to Article 14(2) of the Medical Treatment and Custody Act. However, not only the grounds for appeal submitted by the prosecutor but also the grounds for appeal for this part of the appeal are not indicated.

2. Determination

A. Part of the defendant's case

1) As to the assertion of misunderstanding legal principles

Article 330 of the Criminal Code provides that "a person who steals another's property by intrusion upon residence, guarded dwelling house, structure or ship or occupied room at night shall be punished by imprisonment for not more than ten years."

The interpretation of penal provisions should be strict, and it is not permitted to excessively expand or analogically interpret the meaning of penal provisions in the direction unfavorable to the defendant. In light of the language and text of the above provision, the phrase “even at night” is construed to read “influence” or “influence” or “influence”, and it is not construed to read “influence” or “influence” without “influence. In addition, if it is established even if an intrusion upon another’s property by intrusion into a room at night and then theft took place at night, it can be deemed that there is no possibility that an offender might be found guilty of larceny at night if the offender made a statement that he/she plans for larceny at night, and there is no possibility that the perpetrator might be found guilty of larceny at night (see, e.g., Supreme Court Decision 200Do2650, Sept. 8, 199). It can be interpreted that the crime of larceny at night is established for the purpose of: (a) it is likely that the perpetrator might be found guilty at night.

Therefore, at around 15:40 on June 16, 2010, the Defendant invaded the victim’s non-indicted 1’s ○○○○○○○○○○○○○○202 operated on the day at night (hereinafter omitted) and recognized the fact that the Defendant stolen the above victim’s LROM monitors owned by the said victim at around 21:00 on the same day. The judgment below which acquitted the Defendant of the charge of the theft of night-off in the facts charged in this case against the Defendant at night is just and acceptable. In so doing, it did not err by misapprehending the legal principles as to the larceny of night-off, which affected the conclusion of the judgment, and thus, the Prosecutor’s allegation in this part is not acceptable.

2) As to the assertion of unreasonable sentencing

It is recognized that the defendant committed each of the crimes of this case during the period of repeated crime only three months after he/she was released after having been sentenced to imprisonment with prison labor and medical treatment and custody for the same crime, the defendant was sentenced to imprisonment with prison labor and medical treatment and custody for the same crime, and the defendant did not agree with the victim non-indicted 2.

However, considering the following factors: (a) the Defendant’s crime of inhaleting hallucinogenic substances of this case was limited to one time; (b) the Defendant’s damage was not significant; (c) the victim Nonindicted 1 was not punished; (d) the Defendant is in profoundly against his/her own mistake; and (e) other factors of sentencing specified in the instant pleadings, such as age, character and conduct, family relationship, etc. of the Defendant’s age, character and family relationship, the Prosecutor’s assertion on this part cannot be accepted.

B. Part of medical treatment and custody case

In addition, there is no guide to decide on appeal, and even if examining the judgment of the court below, there is no reason to investigate and reverse it ex officio.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act and Article 51 of the Medical Treatment and Custody Act. It is so decided as per Disposition.

Judges Kim Sang-chul (Presiding Judge)