Criminal who has committed a crime, such as habitual larceny, prescribed in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, has invaded upon residence as a means of the crime

Majority Opinion Act

In a case where a person who commits the crime of habitual larceny, etc. as provided in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "Habitual Larceny") has invaded upon his/her residence as a means of the crime, the act of intrusion upon his/her residence shall be absorbed into the crime of habitual larceny, etc., and only one crime of habitual larceny, etc. as provided in the above Article shall be established and separate from the crime of habitual larceny, etc. In addition, the criminal who committed the crime of habitual larceny, etc., has been invaded upon his/her residence for the purpose of habitual larceny, other than the crime, and even in a case where he/she has invaded upon his/her residence without the crime of habitual larceny, and even in a case where he/she is found to be the occurrence of

The Minority Opinion Act

Except as otherwise provided by law, the crime of intrusion upon residence is established separately from the crime for which it is intended, regardless of its purpose, and the part of the objective is not affected by the establishment of the crime of intrusion upon residence. Thus, it cannot be viewed that the crime of intrusion upon residence which is originally separate purpose is included in the crime of habitual larceny, etc. only in the case of habitual larceny for which the crime of intrusion upon residence is committed.

The Minority Opinion Act

Article 5-4(1) of the above Act is limited to the crimes or attempts of Articles 329 through 331 of the Criminal Act, which are inserted in the criminal policy consideration to maintain social order by punishing a person who habitually commits larceny. As such, the crime of intrusion upon residence under Article 319 of the Criminal Act is not included in the above Act, unless there is any doubt as to whether the crime of intrusion upon residence for the purpose of larceny is included in the above Act.

[Binding Force Judgment: Discarding this Judgment by this Court Decision 83.04.12 83Do422]

Article 319 of the Criminal Act, Article 5-4 (1) of the Act on Aggravated Punishment, etc.

Supreme Court Decision 83Do1068 delivered on June 28, 1983, Supreme Court Decision 83Do422 delivered on April 12, 1983

Defendant

Prosecutor

Seoul Criminal Court Decision 83No7040 delivered on April 13, 1984

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

1. In a case where a thief has invaded upon his residence as a means of committing the crime, the act of intrusion upon his residence is not absorbed into the crime of larceny, but constitutes the crime of larceny and constitutes the crime of intrusion upon his residence separately from the crime of larceny, in principle, there is a difference between larceny and the crime of larceny.

However, in a case where a criminal who committed habitual larceny, etc. as provided in Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter "Special Crimes"), has invaded upon his/her residence as a means of the crime, the act of intrusion upon his/her residence shall be absorbed into the crime of habitual larceny, etc., and constitutes only one crime of habitual larceny, etc. as provided in the above Article. Further, if the criminal who committed the above habitual larceny, etc. was injured by his/her residence for the purpose of habitual larceny, other than the crime, but is found to have been committed for the crime of habitual larceny, and even in a case where he/she was involved in his/her residence, it shall be deemed that the act of intrusion upon his/her residence constitutes only one crime of habitual larceny, etc. as provided in the above Article, and constitutes not the crime of habitual larceny, etc., separate from the crime of habitual larceny, etc.

On April 12, 1983, Supreme Court Decision 83Do422 Decided April 12, 1983 shall be discarded.

2. The reasons to view as above are as follows.

(1) The purport of Article 5-4(1) of the Special Cases of the Aggravated Punishment Act is to punish a person who habitually commits a crime of larceny, night intrusion, or special larceny, or attempts to commit such crime by emphasizing habituality, which is the realization of a criminal habit. However, considering that the above provision treats simple larceny which is not a constituent element of intrusion upon residence as long as habitual larceny is recognized as habitually, as it is equally treated as a constituent element of intrusion upon residence and aggravated punishment as the same statutory punishment, it is reasonable to view that the illegality of intrusion upon residence has already been included in the assessment of the constituent elements of the above provision, as in the case of habitual night larceny, and thus, it is not necessary to recognize the establishment of a crime of intrusion upon residence separately from the crime of habitual larceny as provided in the above provision.

If it is not seen as above, and if it is deemed that the crime of habitual larceny as prescribed in Article 5-4 (1) of the Aggravated Punishment Act is established separately from the crime of habitual larceny, etc., it shall be punished within the statutory term as one of the crimes prescribed in the above Article of the Aggravated Punishment Act in the case of habitual night intrusion larceny which habitually intrudes upon residence at night. On the other hand, in the case of larceny which habitually intrudes upon residence during night, it shall be punished within one of the crimes prescribed in the above Article of the Aggravated Punishment Act and the crime of habitual intrusion upon residence, and shall be punished within one of the concurrent penalties. Thus, it would result in unreasonable results that the punishment imposed on the habitual larceny, which is more severe than the one of night intrusion larceny, is more severe than the one of night intrusion larceny (see Supreme Court Decision 83Do1068, Jun. 28, 1983).

In addition, in a case where a habitual thief commits a thief, in addition to the crime, he/she was injured by his/her house for the purpose of the thief in addition to the crime, but did not reach the thief, and when his/her residence was invaded at night, he/she constitutes an attempted thief in night, and only one of the crimes prescribed in Article 5-4(1) of the Aggravated Punishment Act is established as an offense of the same type as that of another habitual thief in the case where his/her residence was invaded during night, while the crime of habitual thief in the Act was committed during the daytime, if two crimes of habitual thief and intrusion upon residence were committed in the middle of the heavy term of punishment, and thus, it would be unreasonable to lose balance.

(2) However, as seen below, it is unreasonable to determine whether a crime of intrusion upon residence is established according to the purpose of the crime, even though it is not an objective crime, and even according to the majority opinion, where a habitual thief has invadedd upon a residence for a minor arrest purpose, for example, a habitual thief may not avoid any imbalance that should be punished as a punishment heavier than that of the crime of larceny.

However, the majority opinion emphasizes that if intrusion upon residence was committed as a means of crime for the purpose of larceny and habitually, it is deemed that it was absorption into the crime of habitual larceny, etc. as stipulated in Article 5-4(1) of the Aggravated Punishment Act, based on the fact that it is the origin of habitual larceny, etc., and it does not constitute the crime of habitual larceny, etc. solely on the ground that the purpose of intrusion upon residence is the larceny. In addition, the imbalance between the punishment and the punishment alleged in the majority opinion points out the contradiction that the severity of the punishment is changed following the seriousness of the punishment depending on whether it is night or night when the act of intrusion upon residence committed as a means of larceny is committed as a means of larceny, and as such, it is natural that any imbalance exists between the entry into residence which is not wholly related to the larceny, such as the case of the novel case where the minority opinion

In addition, according to the majority opinion, the minority's opinion argues that if a criminal who commits a large number of larceny crimes for the purpose of larceny and habitual larceny is punished through minor punishment for the crime of intrusion upon his/her residence, other habitual larceny crimes will be acquitted by res judicata effect, and unreasonable.

However, the above assertion is based on the premise that the res judicata effect of a final and conclusive judgment on the act of absorption naturally extends to the crime that absorbs the crime in a comprehensive one crime of absorption relation. The unreasonable result claimed by a minority opinion is an issue that may arise with respect to the comprehensive one crime of all absorption relations, and it does not arise only between the crime of habitual larceny, etc. as prescribed by the special laws, such as this case, and the crime of intrusion upon residence.

For example, when considering the case of bodily injury of the victim while murdering, the act of bodily injury is not incorporated into the murder crime and does not constitute a separate crime. However, if it is considered that the res judicata effect of the judgment extends to the murder crime in a case where only the act of bodily injury was prosecuted as the crime of bodily injury and the final judgment was rendered, it is unreasonable to regard it as unreasonable.

In the end, the unreasonable result pointed out by the minority opinion is that the effect of a final judgment on the absorption act extends to a crime that absorbs the validity of a final judgment on the absorption act in the comprehensive one crime of absorption relation. Therefore, it is difficult to accept the argument that the absorption relationship should be viewed as a substantive competition relationship in order to avoid such unreasonable result.

3. According to the reasoning of the judgment below, the court below sentenced two years at Seoul High Court on January 27, 1984 that the defendant was sentenced to a crime of habitual larceny and attempted larceny by committing a crime of habitual larceny in violation of Article 5-4 (1) of the Aggravated Punishment Act, which became final and conclusive at that time, and confirmed the facts charged in this case where the defendant intrudes on another person's residence for the purpose of larceny, and it is obvious that the date of the above final and conclusive judgment was prior to the above final and conclusive judgment in light of the facts charged in this case, the facts charged in this case is related to a single comprehensive crime of violation of Article 5-4 (1) of the Aggravated Punishment Act, and the res judicata effect of the above judgment affects the facts charged in this case.

In light of the records, we agree with the determination of facts by the court below, and we find that the court below formed only one crime as prescribed by the above special exception law and the res judicata effect of the above judgment extends to the facts of the prosecution in this case by combining the crime of the above final judgment and the crime of intrusion upon residence in this case. There is no error of law by misunderstanding the legal principles as to the number of crimes as alleged in the arguments.

4. The above conclusion is consistent with the majority opinion of the participating judges, except for the dissenting opinion of the judge of the Supreme Court concerning Egyptive rule, Egyun, Egyun, Egyun, Egyun, Egyun, and Shin Shin, so the prosecutor's appeal shall

5. Dissenting Opinion by the Supreme Court Justice Lee Il-young, Kim Jong-young, Cho Jong-young, and Shin Jong-young

A. As explained in the majority opinion, there is no theory that the crime of intrusion upon residence is separate from the crime of larceny, except as otherwise expressly provided for in Articles 330 and 331(1) of the Criminal Act. This is because, in addition to the case of larceny, the purpose of the crime of intrusion is limited to arrest, injury, etc., and the crime of intrusion upon residence is limited to the case of other crimes such as robbery, and the crime of intrusion upon residence is not a means of intrusion at any time. If the end is replaced, unless otherwise provided for in the Act, the crime of intrusion upon residence is established separately from the crime of intrusion upon purpose, and it is not affected by the establishment of the crime of intrusion upon residence.

B. However, in a case where a majority opinion intrudes upon a residence during the week with intent to commit the crime of habitual larceny, etc. as stipulated in Article 5-4(1) of the Act on Special Cases concerning the Aggravated Punishment, the act is absorbed into habitual larceny, and only one crime of habitual larceny, etc. is established, and it does not constitute a separate crime of habitual larceny, etc., and even in a case where a person intrudes upon a residence during the week for the purpose of habitual larceny, he/she does not reach the crime of habitual larceny, and even in a case where he/she is in contact with a residence, he/she constitutes only one crime of habitual larceny,

C. First, it is difficult to understand that the residential intrusion in daytime for the purpose of habitual larceny, etc., which is a separate crime, is absorption into such habitual larceny, and it is also difficult to understand that there was a purpose of larceny, and that there was another crime of habitual larceny, etc., which has no relation with the act of habitual larceny, etc. before commencement of larceny, and that there was only one crime of habitual larceny, etc., which is known by us, cannot be understood as the criminal theory that us knows.

Second, in this case, the majority theory acknowledges that if the crime of housing intrusion is considered as a separate crime and the crime of housing intrusion is applied in substantive competition, it is unreasonable and unreasonable compared to the crime of habitual residence intrusion in the applicable sentence, and in this case, the imbalance in the applicable sentence is also approved by us.However, it is considered that such imbalance is not a fluent theory that the initial crime is absorption or inclusive to correct the problem to be considered in the sentencing process of the specific case, or to correct it.

D. In the case where habitual thief was invadedd during the day for the purpose of arresting another person, but the case was prosecuted at the same time due to no one's lack, there is no theory that the crime of habitual thief was established separately for the crime of habitual thief, etc., and the case was punished as substantive concurrent crimes. However, in comparison with the crime of larceny, the purpose of statutory punishment was to arrest more severe than that of larceny, and how the result of imbalance between the punishment is severe.In this case, if the crime of habitual thief is not for the purpose of larceny, it can be viewed as a separate one because it is not for the purpose of larceny, and therefore, it is thought that there is any relation between the intrusion of residence and the theft at all times due to the death of night stief. In this case, the majority theory that the crime of habitual stief could not be combined or combined only for the crime of habitual thief.

6. Dissenting Opinion by a judge of the Supreme Court

Article 5-4(1) of the Aggravated Punishment Act limits the act of forming a provision based on the criminal policy consideration to maintain social order by punishing a person who habitually commits larceny, as well as the crime under Articles 329 through 331 of the Criminal Act or the attempted crime. As such, the crime of intrusion upon residence under Article 319 of the Criminal Act is a crime of intrusion upon residence under Article 319 of the Aggravated Punishment Act, even if the crime of intrusion upon residence for the purpose of larceny is committed as a matter of habitual nature, it is obvious in the literal interpretation of the above provision that it may not be punished unless otherwise stated.

In addition to the crime of habitual larceny under Article 5-4(1) of the Aggravated Punishment Act, if the Majority Opinion deems that a separate crime of intrusion upon residence is established, the crime of intrusion upon residence is punished as concurrent crimes. In the case of habitual night night larceny, which habitually commits the crime, even though the nature of the crime is more serious, compared with the case being punished within the statutory period of Article 5-4(1) of the Aggravated Punishment Act, it would result in unreasonable results that the nature of the crime is heavy. However, the problem of imbalance of punishment does not only be determined formally and logically, but it should be determined by considering the actual application of the punishment, which is extremely unfavorable to the defendant.

The statutory penalty of habitual larceny under Article 5-4(1) of the Aggravated Punishment Act is imprisonment with prison labor for life or for not less than three years, and the width of the statutory penalty has been considerably broad, and even if the crime of habitual larceny is deemed a separate crime and concurrent crimes are deemed concurrent crimes, the minimum term is three years of imprisonment, regardless of the existence of aggravation, and there is no difference between the statutory penalty of habitual larceny and that of the crime of habitual larceny. Therefore, it cannot be said that the Defendant is extremely disadvantageous

Therefore, the majority opinion that gives a defendant a great disadvantage due to the imbalance of punishment is rare reasons.

In addition, it is difficult to interpret as the majority opinion, for example, that in case where a large number of persons who commit a crime of larceny, which constitutes a crime of larceny and a crime of habitual larceny, are punished only for a crime of intrusion upon residence among them, the res judicata effect applies to a large number of larceny which constitutes a crime of habitual larceny, and the crime of intrusion upon residence is more unreasonable. Also, since the crime of intrusion upon residence is established by intrusion upon a residence of another person against the will of the resident, it is not a crime of intrusion upon the residence of another person, it is not an objective crime. Therefore, if there is no examination on whether the crime of intrusion upon residence for which a final judgment has already been made, it is difficult to say that the crime of intrusion upon residence constitutes a crime of larceny which is covered by habitual larceny.

For the foregoing reasons, we cannot agree with the Majority Opinion.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee Jong-hwan, Kim