야간주거침입절도죄에 있어서 야간에 행해져야 하는 행위

• 영문명: The Act which must be done at Night in Larceny committed by Trespassing into Dwelling at Night
• 발행기관: 한국형사법학회
• 저자명: 김경락(Kim, Kyung-Rak)
• 간행물 정보: 『형사법연구』형사법연구 제23권 제4호, 193~226쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.03.02

영문 초록

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”.

목차

Ⅰ. 논의의 쟁점

Ⅱ. 학계의 해석론 및 그에 대한 검토

Ⅲ. 대법원의 해석론 및 그에 대한 검토

Ⅳ. 결론

[참고문헌]

[Abstract]

키워드

야간주거침입절도죄 주거침입행위 절취행위 침입 계속범 Larceny committed by trespassing into dwelling at night Trespassing into dwelling at night Stealing at night Trespassing Continuing crime