[재심기각결정에대한재항고][공2021상,824]
Whether the court in receipt of a request for retrial shall hold a trial on a request for fact-finding as to the grounds for the request for retrial (negative), and whether the parties should be notified thereof if the request is rejected (negative)
The court in receipt of a request for retrial may, if deemed necessary, ex officio investigate the facts as to the reasons for the request for retrial pursuant to Article 431 of the Criminal Procedure Act, but it does not have the right to apply for fact-finding
Therefore, even if a party has filed a request for fact-finding as to the reasons for the request for a retrial, it is only the meaning of demanding the court to make an ex officio request, so the court does not need to hold a trial on this request, and even if the court rejected this request, it is not necessary to notify
Articles 420 and 431 of the Criminal Procedure Act
Appellant 1 and 12 others
Appellants
Law Firm Oil, Attorneys Kang Dong-ho et al.
Suwon District Court Order 2019Ro150 dated November 13, 2019
All reappeals are dismissed.
The grounds of reappeal are examined.
1. As to the assertion that there was a misapprehension of the legal principle on the apparentness of evidence under Article 420 subparag. 5 of the Criminal Procedure Act
In light of the records, for reasons indicated in its holding, the court below did not err in the misapprehension of the Constitution, law, order, or rule that affected the judgment of the court of first instance that dismissed the request for retrial of this case on the ground that the materials that the applicant for a retrial were able to maintain the original judgment as they were not guilty, and that there was no violation of the Constitution, law, order, or rule that affected the judgment.
2. As to the assertion that there was an error of not notifying the request by the requester for review even though the request for the delivery of documents is rejected
The court in receipt of a request for retrial may, if deemed necessary, conduct ex officio a fact-finding on the grounds for the request for retrial pursuant to Article 431 of the Criminal Procedure Act, but it does not have the right to apply for fact-finding
Therefore, even if a party has filed a request for fact-finding as to the reasons for the request for a retrial, it is only the meaning of demanding the court to make an ex officio request, so the court does not need to hold a trial as to this request, and even if the court rejected this request, it is not necessary to notify
According to the above legal principles, even if the court below rejected the request for the delivery of documents as part of the fact-finding as to the grounds for the request for retrial and did not notify the result, it did not err as otherwise alleged in the grounds for reappeal.
3. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jae-hyung (Presiding Justice)