[1] The meaning of larceny as a principal agent of quasi-Robbery and the time to commence the commission of larceny at night

[2] The starting time of the crime of intrusion upon residence

[3] The case holding that in case where a person attempts to open a glass window up to the bends of the apartment with the intention of cutting down the object by intrusion on the apartment at night, and then with the intention of cutting down the object, it shall be deemed that the night-time crime of larceny was commenced

[1] The subject of quasi-Robbery is a thief, who is a thief, who is attempted or attempted to commit a theft, or who intrudes on another’s residence at night for the purpose of stealing another’s property, and should be deemed to have commenced the criminal act of night residence intrusion larceny as stipulated in Article 330 of the Criminal Act at night at the stage of intrusion upon the residence. In the case of intrusion upon residence, if specific acts for intrusion have commenced, such as attaching a correction device into the residence or opening a door, it shall be deemed that the crime of intrusion upon residence was commenced.

[2] The commencement of the crime of intrusion upon residence does not require part of the elements of a crime to be carried out against the will of a resident, manager, occupant, etc. or to enter a structure that is managed. It is sufficient to start the act that includes a realistic risk leading to the fulfillment of the elements of crime.

[3] The case holding that in a case where a person attempts to open a glass window up to the bends of the apartment in the bends of the apartment at night with the intention of stealing the object by intrusion on the apartment at night, and then attempt to open the glass window, it shall be deemed that the night-time crime of larceny has commenced.

[1] Articles 319(1), 330, and 335 of the Criminal Act / [2] Article 319(1) of the Criminal Act / [3] Articles 319(1) and 330 of the Criminal Act

[1] Supreme Court Decision 73Do1553 decided Nov. 13, 1973 (No. 21-3, 44) Supreme Court Decision 89Do2532 decided Feb. 27, 1990 (Gong1990, 836), Supreme Court Decision 94Do2561 decided Sep. 15, 1995 (Gong195Ha, 3473)

Defendant

Prosecutor

Attorney Kim Jong-chul

Seoul High Court Decision 2003No1362 delivered on July 15, 2003

The non-guilty portion of the judgment below shall be reversed, and the above part shall be remanded to the Seoul High Court.

We examine the grounds of appeal.

1. The judgment of the court below

Of the facts charged against the defendant, the part as to quasi-Robbery in the charge of robbery was discovered to the victim Kim (58 years old) who is a security guard at the time of the above apartment, and the defendant was found not guilty of the above 2nd floor of the charge of larceny by stating that "the defendant was not guilty on March 2, 2003, 19:45, 445, 1909, and then 1909, 209, 1909, 202, and 190, 200, 200, 200, 200, 200, 200, 200, 200, 20,000, 20,000,000, 20,000, 20,000,000,00,000,00,000,00,00,00,00).

2. The judgment of this Court

However, we cannot agree with the decision of the court below that the defendant had already gone to be prone to the latter part of the above apartment No. 202, and that it cannot be readily concluded that the defendant had started to engage in night-time larceny.

Quasi-Robbery is a thief, who is a larceny, who is attempted or attempted to commit a larceny (see, e.g., Supreme Court en banc Decision 73Do1553, Nov. 13, 1973; Supreme Court Decision 89Do2532, Feb. 27, 1990). In case of intrusion upon a human habitation for the purpose of theft of another's property at night, the principal agent of robbery shall be deemed to have started to commit a criminal act of larceny at night as prescribed in Article 330 of the Criminal Act at the stage of intrusion upon the dwelling (see, e.g., Supreme Court Decision 9Do689, Apr. 13, 199). In the case of intrusion upon a residence, if a specific act of intrusion was commenced, such as taking place with the criminal intent of intrusion upon the residence, for example, including taking corrective devices entering the dwelling, or adding doors, etc., the commencement of the crime of intrusion upon the residence shall be deemed to have occurred (see, e.g., Supreme Court Decision 195Do565).

기록에 의하면, 피고인은 수사기관에서 "아파트를 둘러보니 2층 집에 불이 꺼져 있어 사람이 없는 것으로 알고 그 아파트 뒤로 돌아가 1층 베란다 난간을 통해 2층 난간을 잡고 2층 집 베란다 창문이 잠겨 있는지 들고 있던 손전등으로 비춰보고 있는데 경비원이 와서 도둑이야 라고 소리쳐 그 곳에서 바로 뛰어 내린 것입니다."(수사기록 27면, 49면)라고 진술하다가 법정에서는 "불이 꺼져 있는 1층 집을 골라 물건을 훔치고 길 건너편에 있는 아파트로 가 둘러보니 불이 꺼져 있는 2층집이 있어 1층 베란다 난간 위에 올라서서 2층 난간을 잡고 베란다창문이 잠겨 있는지 손전등으로 비춰보고 있는데 도둑이야 하는 소리를 들었다."(공판기록 35면), "1층 중간까지 가서 2층 베란다 문이 잠긴 것을 손전등으로 확인하고 내려오는 중에 들켰습니다."(공판기록 143면), "손으로 2층 난간을 잡고 비춰보았습니다."(공판기록 144면)라고 진술하여 그때 그때 진술을 번복하고 있는 사실, 피고인은 2003. 3. 2. 19:30경 부천시 원미구 상동 417 소재 사랑마을 청구아파트 1618동 102호에서 미리 준비한 드라이버를 창문 틈 사이에 넣어 문고리를 젖혀 문을 열고 위 아파트에 침입하여 물건을 훔쳤고, 곧 이어서 같은 날 19:45경 인근에 있는 같은 동 445 소재 꿈동산 신안아파트 1909동 202호의 불이 꺼져 있는 것을 발견하고, 위 아파트에 침입하여 물건을 훔치려고 한 사실, 위 202호 아파트의 구조(공판기록 123면)에 의하면 아파트 뒤쪽 베란다 외부에 알루미늄 샷시 유리창이 설치되어 있고, 그 외부에 높이 약 1~1.5m 정도의 철제난간이 설치되어 있었으며, 2003. 3. 2.의 일몰시각은 18:26경으로 피고인의 이 사건 범행 무렵 이미 해가 져서 주위가 어두운 상태였던 사실, 위 아파트관리인으로서 피고인을 처음 발견하였던 제1심 증인 김규정은 같은 날 19:45경 위 아파트 1909동 2라인에서 적외선 감지기센서가 작동하여 현장에 달려가 보니 피고인이 베란다 난간을 잡고 있는 것을 보고 도둑이야라고 소리를 쳤고(공판기록 59면), 그 때 피고인이 그 소리에 놀라 2층 베란다 난간에서 밑으로 뛰어내려 도망하였다(수사기록 20면)고 진술하고 있는 사실을 알 수 있다.

According to the circumstances, even if the free window of the above apartment 202 was set off, the defendant opened the free window and had the intention to cut off the goods by impairing the above apartment, so it seems that there was no reason to confirm whether the door was temporarily set up without going through the steel studing of the first floor apartment, as alleged by the defendant, and in the situation where the steel strawing of the second floor apartment, it seems impossible to set off the above apartment building with hand to ascertain whether the glass window of the above apartment 202 was set down in order to identify whether the above apartment building was set down in the structure of the apartment building 202, and it seems impossible for the defendant to come up with hand in order to find out whether the windows of the above apartment building 202 were set down in the middle floor of the second floor, and in light of the above Kim Jong-sik stated that the above Kim Do was up under the bottom of the steel 202 apartment building, it is probable that the defendant was going up to the steel straw and to open the apartment building.

In addition, the commencement of the crime of intrusion upon residence does not require the act of entering a building or a structure that is to be managed against the will of a resident, manager, occupant, etc., or to realize part of the elements of a crime, that is, the act of realizing the elements of a crime, and it is sufficient to commence the act of including realistic risks leading to the realization of the elements of a crime. Therefore, if the defendant attempted to open a glass window up to the bee of apartment apartment No. 202 in the above 202 with the intention of destroying the objects by intrusion upon apartment No. 202 and stealing them, it can be deemed that the defendant committed a specific act including an objective

Nevertheless, the court below determined that the defendant could not be deemed to have commenced the crime of night residence intrusion without further deliberation as to the defendant's behavior attitude at the time of finding the defendant's act after confirming the operation of the defendant's shot system in any case where the shot rule operates in the offline of the above apartment house, the hours and regulations taken by the time of finding the defendant's act, etc., shall be deemed to have been erroneous for misapprehending the rules of evidence or misapprehending the legal principles as to the time when the crime of night residence intrusion was commenced, as alleged in the grounds of appeal. The grounds of appeal pointing this out are with merit.

3. Therefore, the non-guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)