Crimes of Larceny under Korean Law

By klawguru, June 26, 2014

“Larceny” is a ten-dollar word. It means “theft.” Let me talk briefly about “Crimes of Larceny” (절도의 죄) under Korean law. In 2012, there were 293,074 reported cases of larceny here in Korea. On average, (roughly) 803 per day, 34 per hour.

I. Larceny (절도)

According to Article 329 of the Criminal Act (형법), the punishment for “Larceny” is imprisonment for not more than 6 years or a maximum (criminal) fine of 10 million won. When a definite term of imprisonment is imposed, a suspension of qualifications for not more than 10 years may be concurrently imposed. Habitual offenders are more severely punished. Attempts are also punished.

The definition of “Larceny” under Korean law is almost identical to the one used in the U.S. Under U.S. common law, larceny is “the trespassory taking and carrying away of personal property of another with intent to steal.” A good definition. So, how does “Larceny” differ from other similar crimes?

“Larceny” differs from “Robbery” (강도) in that “violence” or “intimidation” is not used as a means.

“Larceny” differs from “Fraud” (사기) or “Extortion” (공갈) in that the property is not given up by the victim him/herself; it is taken away by the perpetrator.

“Larceny” can only involve another person’s “property” (재물). It cannot involve “pecuniary advantages” (재산상의 이익). In other words, the perpetrator has to take and carry away a tangible “item” (e.g., things, money) that is in the possession of another person. The owner and the person in possession need not be identical.

But, they are all similar in that the perpetrator had to have possessed the “intent to unlawfully take/keep for oneself” (불법영득의사). Intent (to steal) is an essential element in all of these crimes. “Oops! I thought it was mine!” -> If true, not a crime.

FYI, it is helpful to know the different types of Korean verbs specifically used to describe the commission of each crime:

1) To take by Larceny: 절취하다.

2) To take by Robbery: 강취하다.

3) To take by Fraud: 편취하다 or 사취하다.

4) To take by Extortion: 갈취하다.

Examples of “Larceny” include taking away clothes left inside a “reusable clothing donations box,” or taking away money accidentally left (by another person) at an ATM. Money left at/near an ATM is considered to be in the possession of the bank/establishment, and that’s why the crime is not “Embezzlement of Lost Article” (점유이탈물횡령). The item is not “lost” if in the possession of someone/anyone.

DID YOU KNOW? The first ever ATM in Korea was installed in Myeong-dong, Seoul (in 1979) by Joheung Bank (now Shinhan Bank).

DID YOU KNOW? In North Korea, larceny of (wire) is punishable by death.

In law school, they often liked to test when a crime has been “completed” or “initiated” (attempted). I often felt that economics and law are somewhat similar in that both are interested “marginal analysis.” Anyway, consider the following situation. A thief is unlawfully inside another person’s house. The owner is asleep. The thief picks up and holds onto a clock and a radio (with the intent to steal). The owner suddenly wakes up and finds the thief. The owner yells, “Thief! Thief!!” The thief is so startled that he throws both items on the livingroom floor and flees. Has the thief committed a completed crime or merely an attempt? The answer is a completed crime of “Larceny” (Supreme Court Decision of April 22, 1964, 64Do112). The crime is said to be complete when “the possession of another person is infringed, and the perpetrator is newly in control of possession.” The attempt threshold had long before been met, for example, when the thief had begun to “specifically look for” an/the item to steal (with the intent to steal).

II. Larceny by Intrusion upon Habitation at Night (야간주거침입절도)

According to Article 330 of the Criminal Act, the punishment for “Larceny by Intrusion upon Habitation at Night” is imprisonment for not more than 10 years. When a definite term of imprisonment is imposed, a suspension of qualifications for not more than 10 years may be concurrently imposed. Habitual offenders are more severely punished. Attempts are also punished.

This crime is translated as “Compound Larceny” by KLRI (Korea Legislation Research Institute). I have opted to translate it more literally as “Larceny by Intrusion upon Habitation at Night.”

This crime is basically: “Larceny” (절도) + “Intrusion upon Habitation” (주거침입) when perpetrated at nighttime.

When a place of habitation is intruded upon during daytime, and larceny committed also during daytime, the perpetrated crimes are: “Intrusion upon Habitation” + “Larceny.”

What if the place of habitation was intruded upon during daytime, but the larceny later committed during nighttime? According to the Supreme Court of Korea, this would also be “Intrusion upon Habitation” + “Larceny.” Not “Larceny by Intrusion upon Habitation at Night.” Please see Supreme Court Decision of April 14, 2011, 2011Do300. So basically, the intrusion itself must take place during nighttime. “Nighttime” refers to time between sunset and sunrise.

This crime is initiated (attempted) as soon as the place of habitation is intruded upon. This crime is completed as soon as the item is obtained (i.e., possession gained).

III. Special Larceny (특수절도)

According to Article 331 of the Criminal Act, the punishment for “Special Larceny” is imprisonment for not more than 10 years. The minimum sentence is imprisonment for at least 1 year. When a definite term of imprisonment is imposed, a suspension of qualifications for not more than 10 years may be concurrently imposed. Habitual offenders are more severely punished. Attempts are also punished.

With this crime, Article 5-4 of the Act on the Aggravated Punishment, etc. of Specific Crimes (특정범죄가중처벌등에관한법률) takes precedence. In Korea, special laws take precedence over general laws such as the Criminal Act.

There are three possible forms of this crime:

1) 손괴후야간주거침입절도: Burglary (under U.S. common law) + Larceny (under U.S. common law), or

2) 흉기휴대절도: “Larceny” (절도) perpetrated using a “deadly weapon,” or

3) 합동절도: “Larceny” (절도) perpetrated jointly by two or more persons.

FYI, burglary (under U.S. common law) is the “breaking and entering of the dwelling house of another person at nighttime with intent to commit a felony therein.” Larceny (under U.S. common law) is “the trespassory taking and carrying away of personal property of another with intent to steal.”

IV. Unlawful Use of Automobile, etc. (자동차 등 불법사용)

According to Article 331-2 of the Criminal Act, the punishment for “Unlawful Use of Automobile, etc.” is imprisonment for not more than 3 years, or a (criminal) fine not exceeding 5 million won, or detention, or a minor (criminal) fine. When a definite term of imprisonment is imposed, a suspension of qualifications for not more than 10 years may be concurrently imposed. Habitual offenders are more severely punished. Attempts are also punished.

As you can imagine, this crime involves “temporarily using, without consent, another person’s automobile, ship, aircraft or motorcycle.” Joyrides, so to speak.

One important tidbit is that abandoning the vehicle/motorcycle just anywhere constitutes “Larceny,” not this crime (Supreme Court Decision of September 6, 2002, 2002Do3465). In order to constitute this crime, the vehicle/motorcycle would have to be returned to where it was first personally “commandeered.”

I read (earlier this month) that an American soldier (in Yongsan, Seoul) drove off in a taxi while the taxi driver was briefly in the convenient store. The crime would have been “Larceny.”

V. Crimes of Larceny Against Relatives (친족상도례)

Interestingly, when the above mentioned crimes are committed against a close relative, one’s spouse, one’s parent, or one’s son/daughter, criminal punishment is exempted. For (more) distant relatives, a criminal complaint is required in order to indict. Please see Article 344 of the Criminal Act.

So, an adult stealing money from her mother would go (criminally) unpunished. If a high school student goes on a joyride using his/her father’s car, he/she will likewise not be punished. His/her “partners in crime,” meanwhile, could. FYI, the age of criminal responsibility in Korea is 14 (int’l age).

VI. Korean Bar Exam Sample Question

<Criminal Law Question 4> Choose the correct combination of “correct statements denoted as (o)” or “incorrect statements denoted as (x)” with regards to Bob’s crime(s). Answer according to the view of the Supreme Court of Korea.

a. Bob intrudes upon a cafe at night and proceeds to an area (room) that is being used as the owner’s residence. Bob then opens the cupboard and takes the owner’s savings account book. On his way out, Bob is caught by the owner and gives back the savings account book. Here, Bob has committed a completed crime of “Larceny by Intrusion upon Habitation at Night.”

b. Bob purchased and registered a car under Sam’s name (with consent). Bob recently relinquished possession of this car, as collateral, to another person. One day, Bob secretly and unlawfully takes back the car from that person. In such case, that car is only subject to the crime of “Obstructing Another from Exercising One’s Right” because Bob is legally the owner of the car. Therefore, Bob has not committed the crime of “Larceny.”

c. At a PC bang, a customer (Bob) stumbles upon a cell phone accidentally left by another customer. Bob secretly takes it with him (to keep it). If the PC bang owner was never really aware of the existence of that cell phone, the owner could never really be in possession of it. Therefore, Bob has committed the crime of “Embezzlement of Lost Article,” not “Larceny.”

d. At work, Bob gets into an argument with his boss. Bob submits his letter of resignation that day. On his way out, Bob secretly takes with him some items and “slush fund” documents (all exclusively kept and managed by Bob). Notwithstanding the fracas, Bob somehow ends up continuing to lawfully work for the company (as if nothing had ever happened). In such case, there was no “intent to unlawfully take/keep for oneself” on the part of Bob, and he has not committed the crime of “Larceny.”

e. Bob secretly takes with him a cell phone sold/displayed at a cell phone store. With that phone, Bob makes a few phone calls and sends some text messages. After two hours or so, Bob secretly returns that cell phone by leaving it near a plant in front of the store. He says nothing to the owner. In such case, there was “intent to unlawfully take/keep for oneself” on the part of Bob, and he has committed the crime of “Larceny.”

1) a(x), b(o), c(o), d(x), e(x)

2) a(o), b(x), c(x), d(o), e(o)

3) a(o), b(o), c(x), d(x), e(x)

4) a(x), b(x), c(x), d(x), e(o)

5) a(o), b(o), c(x), d(o), e(o)

What do you think is the correct answer? This was a multiple choice question from the 3rd National Bar Exam administered last January. I have roughly translated the question from Korean into English. It’s a relatively straightforward question in that it tests only whether the examinee knows the Supreme Court view.

Thanks for reading!