야간주거침입절도죄에서 야간의 상황이 요구되는 시기 (The Meaning of 'at night' in Compound Larceny)

서지정보

· 발행기관 : 한국비교형사법학회
· 수록지 정보 : 비교형사법연구 / 13권 / 1호 / 159 ~ 190페이지
· 저자명 : 김태명

초록

A people who steals another's property by trespassing upon residence, guarded dwelling house, structure or occupied room at night shall be punished for compound larceny(§ 330). But it's not clear whether a person who broke into a house in the daytime and stole another' property at night shall be punished for compound larceny or concurrent crimes of Intrusion upon Habitation(§ 319①) and Larceny(§ 329).
On April 14. 2011, Korean Supreme Court upheld that the accused who entered a motel room at 15:30 and lifted a LCD monitor at 21:00 could not be punished for compound larceny, because the §330 requires the circumstance of night at the time when the burglar intrudes a occupied room and it's application could not be expanded to the a people who trespassed upon residence in the daytime and stole another' property at night.
But sense of instability and danger of extension of damage which caused by the trespassing from daytime to night are not smaller than that which brought by intrusion at night. And the translation of words in the criminal code couldn't be limited to the literary meaning but it should be done based on the consideration from various angles such as the spirit of legislation, system of the provisions etc. So the § 330 should be interpreted that it requires night as a condition of time and another's residence a condition of place when the accused steals another' property.
When the bugler intrudes a house in the daytime and lifted a steals another's possession at night, the necessary conditions of time and place which requires the provision of compound larceny(§ 330) is fulfilled. So the accused this decision could be punished for compound larceny.

영어초록

A people who steals another's property by trespassing upon residence, guarded dwelling house, structure or occupied room at night shall be punished for compound larceny(§ 330). But it's not clear whether a person who broke into a house in the daytime and stole another' property at night shall be punished for compound larceny or concurrent crimes of Intrusion upon Habitation(§ 319①) and Larceny(§ 329).
On April 14. 2011, Korean Supreme Court upheld that the accused who entered a motel room at 15:30 and lifted a LCD monitor at 21:00 could not be punished for compound larceny, because the §330 requires the circumstance of night at the time when the burglar intrudes a occupied room and it's application could not be expanded to the a people who trespassed upon residence in the daytime and stole another' property at night.
But sense of instability and danger of extension of damage which caused by the trespassing from daytime to night are not smaller than that which brought by intrusion at night. And the translation of words in the criminal code couldn't be limited to the literary meaning but it should be done based on the consideration from various angles such as the spirit of legislation, system of the provisions etc. So the § 330 should be interpreted that it requires night as a condition of time and another's residence a condition of place when the accused steals another' property.
When the bugler intrudes a house in the daytime and lifted a steals another's possession at night, the necessary conditions of time and place which requires the provision of compound larceny(§ 330) is fulfilled. So the accused this decision could be punished for compound larceny.

참고자료

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