[1] In a case where a thief intrudes upon a residence as a means of crime in a special larceny under Article 331(2) of the Criminal Code, the relation between special larceny and the crime of intrusion upon residence (=the relation between real concurrence) and the crime of intrusion upon residence, and the time when the special larceny commences (=the time when the crime of larceny

[2] The case affirming the judgment of the court below which acquitted the Defendants of special larceny under Article 331 (2) of the Criminal Act on the ground that there was no "the commencement of the execution", in case where the Defendants, who were discovered by damaging the apartment entrance door of "in daytime" and escaped, were prosecuted for attempted special larceny

[1] In the case of special larceny under Article 331(2) of the Criminal Code, it is not a constituent element. Thus, in the case where a thief intrudes upon his residence as a means of crime, the act of intrusion upon his residence does not absorption into larceny, and constitutes a separate crime of intrusion upon his residence, and constitutes a substantive concurrent relationship with the crime of larceny. Even if more than two persons intruded upon his residence for the purpose of larceny in the week, not at night, but at night, if the act of larceny was not commenced, it cannot be deemed that the commission of special larceny was commenced, and thus, the attempted crime is not established.

[2] The case affirming the judgment of the court below which acquitted the Defendants of special larceny under Article 331 (2) of the Criminal Act on the ground that there was no "the commencement of the execution", in case where the Defendants, who were discovered by damaging the apartment entrance door of "in daytime" and escaped, were prosecuted for attempted special larceny

[1] Articles 37, 319(1), and 331(2) of the Criminal Act / [2] Article 331(2) of the Criminal Act

[1] Supreme Court en banc Decision 84Do1573 delivered on December 26, 1984 (Gong1985, 283), Supreme Court Decision 86Do1753 delivered on October 28, 1986 (Gong1986, 3159), Supreme Court Decision 92Do1650 delivered on September 8, 1992, Supreme Court Decision 2008Do7820 Delivered on November 27, 2008 (Gong208Ha, 1851)

Defendant 1 and one other

Prosecutor

Chuncheon District Court Decision 2009No176 decided August 28, 2009

The appeal is dismissed.

We examine the grounds of appeal.

In the special larceny of Article 331(2) of the Criminal Act, since intrusion upon residence is not a constituent element of the crime, if a thief has invaded upon residence as a means of the crime, such intrusion upon residence does not absorption into larceny, and constitutes a separate crime of intrusion upon residence, and thereby constitutes a concurrent relation with larceny (see Supreme Court Decision 2008Do7820, Nov. 27, 2008). Even if two or more persons jointly intrude upon another's residence for the purpose of larceny in a week other than night, if the act of larceny was not commenced, if the thief does not start for the purpose of larceny, then the commission of special larceny cannot be deemed to have commenced, and the attempted crime is not established (see Supreme Court Decision 92Do1650, Sept. 8, 192).

In light of the above legal principles, it is proper that the court below found the Defendants not guilty on the ground that there was no commencement of the execution of special larceny as stipulated in Article 331(2) of the Criminal Act against the Defendants, who were discovered to have escaped after destroying the correction device of the apartment entrance of the victim during the daytime, and they did not err by misapprehending the legal principles as argued.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)