절도죄와 주거침입죄의 불법비례적 죄수관계의 정립

Abstract

Larceny means to steal another’s property and includes compound larceny, special larceny and habitual larceny in korean criminal code. Among these crimes, compound larceny is to steal another's property by trespassing upon residence, guarded dwelling house, structure or ship or occupied room at night. That means, this crime should be to be done not by daytime but only at night, so intrusion upon habitation should be done at night too. The problem is that compound larceny requests intrusion upon habitation to be done at night. As that result to trespass upon residence at night for stealing can be penalized by § 330 Criminal code, but if someone steals another's property through housebreaking by daytime, larceny and intrusion upon habitation should be committed separatedly. Related to this, opinion of the Korean Supreme Court is divided as two attitudes. One is to punish only habitual larceny without intrusion upon habitation crime in special criminal laws on specific crimes. The other is to establish both habitual larceny and intrusion upon habitation in criminal act. Why is attitude of two laws different? The reason is how the maximum of statutory punishment of habitual larceny in each act. But it makes unbalance in sentencing between daytime and night habitual larceny, established issue of separate burglary. In this study, the judgment of convicts in terms of intrusion upon habitation and larceny will be focused by illegal-proportional criminality and aim to set up a specific and unificative interpretation for all larceny structure.