In the case where a person with a habitive wall of theft has inflicted upon his residence in order to steal property in the daytime due to a habitive wall, whether intrusion upon his residence constitutes a crime separate from habitual larceny, etc.

In a case where a person who has a habitive wall of theft suffers residential intrusion during the week in order to steal property by benefiting from the habitive wall, the above residential intrusion constitutes a crime of violation of Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, including, but not limited to, habitual larceny or the attempted larceny, separate from the attempted crime, and separate crimes independently.

Articles 319 and 329 of the Criminal Act, Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes

Supreme Court Decision 83Do1068 Decided June 28, 1983 (Article 5-4 (12) 678 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Gong710No 1158)

Defendant

Defendant and Appellant for Custody

Jinju Branch of the Msan District Court of the first instance (86 Gohap139,86 reduction/10)

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The 90-day detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

The seized divers (No. 1) and one knives (No. 2) shall be confiscated from the accused respectively.

The appeal against custody claim filed by the requester for protective custody shall be dismissed.

The summary of the grounds for appeal by the defendant and the respondent for appeal (hereinafter referred to as the "defendant") is as follows: first, the defendant entered the place of entry on the date and time stated in the facts charged in this case; however, it was only intended that the defendant delivered a friend or attempted to break away, but the court below recognized the defendant as a thief, which affected the conclusion of the judgment; second, the court below erred in misunderstanding of facts; second, the defendant's family form is difficult; second, the sentencing of the court below, which is sentenced to 1 year and 6 months and 7 years under protective custody after the crime, is too unreasonable; second, the defendant was placed under protective custody; second, the summary of the grounds for appeal by the counsel was against the defendant although there is no risk of repeating a crime; this is a violation of law by misunderstanding of facts or misunderstanding of legal principles that affected the judgment.

Therefore, examining the records by comparing various evidences duly admitted by the court below, it can sufficiently recognize the facts charged by the defendant and the requirements for care and custody, and there is no other error as pointed out by the defendant or defense counsel in the process of fact-finding by the court below. Since the period of protective custody is legal and there is no room for the court to reduce it at its discretion, there is no appeal on this point.

However, prior to the judgment on the grounds for appeal of unfair sentencing against the defendant's accused case, in case where a person who has a habit of larceny takes residence in order to steals property by taking the habit of the habit, the above residential intrusion constitutes a violation of Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (see Supreme Court Decision 83Do1068, Jun. 28, 1983; Supreme Court Decision 83Do1068, Jun. 28, 1983; Supreme Court Decision 83Do1068, Jun. 28, 198). The court below held that the above crimes were established for each type of offense and sentenced to concurrent crimes. Accordingly, the judgment of the court below is erroneous in the misapprehension of legal principles which affected the conclusion of the judgment, and the part of the defendant's case among the judgment below is not exempt from reversal in this respect.

Therefore, the appeal by the defendant against the custody claim case is without merit. Accordingly, it is dismissed in accordance with Article 42 of the Social Protection Act and Article 364(4) of the Criminal Procedure Act. The part of the judgment below on the defendant's case is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act and it is again decided as follows.

Criminal facts and summary of evidence

Since the criminal facts of the defendant recognized as a party member and the summary of the evidence are the same as the entries in the corresponding column of the judgment of the court below, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

The so-called judgments shall comprehensively include the following: Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 342 and 329 of the Criminal Act apply; Article 35 of the Criminal Act; Article 35 of the Criminal Act applies to the criminal record subject to the judgment that constitutes a repeated crime; Article 42 of the same Act applies to a repeated crime; Article 45 of the same Act applies to the crime of this case; Article 42 of the same Act; Article 55 of the same Act applies to a repeated crime; Article 53 and Article 55(1)3 of the Criminal Act; Article 53 of the same Act provides discretionary mitigation; Article 55(1)3 of the same Act applies to the defendant within the scope of the term of punishment; Article 57 of the Criminal Act includes 90 days of the number of detention days prior to the declaration of the judgment of the court below; Article 57 of the same Act applies to the defendant; Article 48(1) of the same Act applies to a person who provided information or intends to be held by the defendant.

It is so decided as per Disposition.

Judges Song Jin-hun (Presiding Judge)