In a case where a person who commits habitual larceny as stipulated in Article 332 of the Criminal Act intrudes upon his/her residence as a means of committing a crime, whether such act constitutes separate crime of intrusion upon his/her residence (affirmative)

Articles 37, 319(1), 329, 330, 331, 331-2, and 332 of the Criminal Act

Supreme Court en banc Decision 84Do1573 Decided December 26, 1984 (Gong1985, 283) Supreme Court Decision 2008Do7820 Decided November 27, 2008 (Gong2008Ha, 1851)

Defendant

Defendant

Attorney Limited-at-Law

Daegu High Court Decision 2014No686 decided June 4, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on the misapprehension of legal principles as to the number of crimes

A. In addition, in the event that a thief has intruded upon his residence as a means of crime, it does not constitute an element of habitual larceny, except for night larceny as provided in Article 330 of the Criminal Act, and damage and special larceny as provided in Article 331(1) of the same Act, and in the event that the thief has intruded upon his residence as a means of crime, the act of intrusion upon his residence does not constitute a crime of habitual larceny, and constitutes a separate crime of habitual larceny and substantial concurrent relation with the crime of larceny (see Supreme Court en banc Decision 84Do1573, Dec. 26, 1984). Furthermore, Article 332 of the Criminal Act provides that an offender shall be punished by adding one half of the punishment stipulated in the crime of habitual larceny, night larceny, special larceny, and vehicles, etc., which are crimes of habitual larceny, which are crimes of habitual larceny, to constitute a crime of habitual larceny, separate from the crime of habitual larceny, and thus, an offense of habitual larceny, which is an element of habitual larceny.

B. The lower court determined to the effect that the Defendant committed an intrusion upon the victim’s residence during the daytime, such as the fact that the Defendant committed an intrusion upon the victim’s residence in the daytime as stated in No. 1 No. 2,6, 10, 11, 12, 19, and 22, and that the Defendant committed an intrusion upon the victim’s residence during the daytime, but that the Defendant’s act of intrusion upon the victim’s residence during the daytime as a means of larceny can be seen as an expression of habituality, and that the Defendant did not constitute a crime of habitual larceny, which was absorbed into habitual larceny, and constitutes only one crime of habitual larceny, and separate crime of intrusion upon the victim’s residence.

However, as seen earlier, the crime of intrusion upon residence and habitual larceny are substantive concurrent relationships, and the judgment of the court below otherwise is not consistent with the legal principles on the crime of intrusion upon residence and the number of habitual larceny. However, if the crime of intrusion upon residence of this case is considered as habitual larceny and substantial concurrent relationships, the number of crimes is increased, and the upper limit of the punishment against the defendant is higher due to concurrent crimes. The ground of appeal that points out the judgment of the court below as a single comprehensive crime, which points out multiple crimes as above, causes disadvantages to the defendant, and it cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decisions 2004Do810, Jul. 9, 2004; 201Do15427, Jun. 14, 2012). Ultimately, the defendant's ground of appeal on this point is that where the defendant's interest is not beneficial to the defendant, and it cannot be reversed as it constitutes an unlawful appeal and it cannot be reversed as it is without merit.

2. Judgment on mistake of facts and assertion of unreasonable sentencing

Although the Defendant did not have committed the larceny of this case, the Defendant asserted the grounds of appeal to the effect that the lower court was unlawful, since the lower court found the Defendant guilty by finding wrong facts in violation of the rules of evidence.

However, the argument in the grounds of appeal, which is merely disputing the judgment of the court below on the selection and probative value of evidence or its basis, belonging to the free judgment area of the fact-finding court, cannot be a legitimate ground of appeal

In addition, under Article 383 subparag. 4 of the Criminal Procedure Act, only cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, and the judgment of the court below affected the conclusion of the judgment, or there is a significant reason to recognize the amount of the punishment significantly unfair. As such, in this case where the court rendered a lower sentence against the defendant, the argument that the court below's fact-finding or the sentence is too unreasonable cannot be seen as either a mother or a legitimate ground for appeal.

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)