야간주거침입절도죄 및 야간주거침입강도죄에 있어 야간이 적용되는 행위 = The Scope of Nighttime for Night-Burglarious Larceny and Night- burglarious Robbery

다국어 초록 (Multilingual Abstract)

Most commentators understand the offense of night-burglarious robbery as the equivalent to night-burglarious larceny, which requires the offense to be committed at night, and assert that the definition and the scope of night are the same for both offenses. However, even though the structure of the two crimes is very similar, robbery is essentially different from theft in that it requires assault and threats against a person, making its difficult to conclude that the scope of nighttime should be identical for both crimes. In this article, we will discuss the respective arguments for nighttime coverage in light of the characteristics of both crimes. Night-burglarious larceny combines the offenses of burglary and larceny, and is an unlawful aggravation to the underlying offense of larceny. In night-burglarious larceny, “night” is a modifier of the phrase “by breaking and entering,” and “breaking and entering” refers to entry from outside into a dwelling. In addition, given that night-burglarious larceny is a time and place aggravating circumstance offense, and that the statutory penalty must be determined in the particular case, the time of night must be present during the breaking and entering of the dwelling and larceny. The offense of night-burglarious robbery is a combination of nses of burglary and robbery, and represents an unlawful aggravation of the underlying offense of burglary. Despite structural similarities between night-burglarious larceny and night-burglarious robbery, the discussion of when the offense is committed is very different. A proper interpretation of the law is that the act of “breaking and entering” itself must occur during nighttime hours. In addition to the fact that night-burglarious robbery is an aggravated offense that adds nighttime and residential entry to the base offense of burglary, and that the statutory sentence must be determined in the specific case, burglary committed by means of assault or intimidation requires the offender to approach the person who is the subject of the assault or intimidation. At night, the victim’s fear confronting an offender is heightened, and the fact that the victim is likely to be in a state of extreme fear and excitement and may suffer serious harm in an attempt to escape the offense of robbery, should be a factor in the crime of assault and intimidation as well as in the crime of residential burglary.