야간주거침입절도죄에 있어서 야간에 행해져야 하는 행위

Abstract

Firstly, the trespassing is the act which means that a doer is entering into the house opposing in the intention of the resident. On the other hand, the act which means that a doer is still staying to the house after he or she just entered into the house isn't the trespassing. The act which means that a doer is entering into the house opposing in the intention of the resident and the act which means that a doer is staying to the house after he or she just entered into the house are different concepts which must be distinguished. Secondly, the article 330 of the Korean Penal Code is providing that the person who trespasses into dwelling at night and steals the property of the others is punished with larceny committed by trespassing into dwelling at night. If we consider the construction form of this sentence, there isn't a possibility of saying that "at night" doesn't modify "trespassing" and only modifies "stealing". Thirdly, the article 330 of the Korean Penal Code which is providing that the person who trespasses into dwelling at night and steals the property of the others is punished with larceny committed by trespassing into dwelling at night consists of one sentence which is "trespassing into dwelling at night" and the other which is "stealing the property of the others". Consequently, in the process of the interpretation on the article 330 of the Korean Penal Code, the view that the act which must be done at night in larceny committed by trespassing into dwelling at night is "stealing", "trespassing or stealing" or "trespassing and stealing" isn't right. The act which must be done at night in larceny committed by trespassing into dwelling at night is "trespassing".