The prosecutor's appeal is dismissed.

Summary of Grounds for Appeal

As to the attempted habitual larceny as indicated in the list of crimes in the judgment below, the court below held that the defendant invadeds on the residence with the intention of larceny, and that the defendant cannot be deemed to have commenced the commission of larceny because he was discovered before commencing the act of painting the property to be stolen, and that the crime of larceny and intrusion upon residence was not recognized separately. In light of the fact that the crime of larceny and intrusion upon residence is a concurrent crime in principle, the Constitutional Court decided unconstitutionality as to Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and that there is benefit in recognizing the crime of intrusion upon residence separately from habitual larceny under the Criminal Act, the court below did not recognize the crime of intrusion upon residence in addition to habitual larceny under the Criminal Act.

The sentence of imprisonment (one year and ten months of imprisonment) imposed by the court below on the defendant is too uncomfortable and unfair.

Judgment

In the case where a person who committed a crime, such as habitual larceny, prescribed in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes in the relevant legal principles concerning the assertion of the misapprehension of the legal principles, intrudes upon his/her residence as a means of the crime, only one crime such as habitual larceny, is established and does not constitute a separate crime of habitual larceny, etc. as prescribed in the above Article. In addition, in the case where the person who committed the above habitual larceny, etc. was injured by his/her residence for the purpose of habitual larceny, in addition to the crime, and was living in the case where he/she did not reach the crime of habitual larceny, even if he/she seems to be the actual occurrence of habitual larceny, etc., the act of intrusion upon his/her residence constitutes only one crime of habitual larceny, etc. as prescribed in the above Article, and does not constitute the crime of habitual larceny, etc., separate from the crime of habitual larceny.