[재심청구기각결정에대한재항고][공1994.9.1.(975),2244]
Whether there is "proof in lieu of a final and conclusive judgment" under Article 422 of the Criminal Procedure Act only by a non-prosecution disposition on the grounds of the expiration of the statute of limitations on the alteration of documents.
For the grounds for retrial under Article 420 subparag. 1 of the Criminal Procedure Act by altering a sales contract, it is insufficient to say that there was a non-prosecution disposition in order to consider the modification of a sales contract as a proof instead of a final and conclusive judgment under Article 422 of the same Act, and the existence of such crime should be actively proven.
Articles 422 and 420 subparag. 1 of the Criminal Procedure Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 2 others, Counsel for plaintiff-appellant)
Re-appellant
Seoul Criminal Court Order 85Nu9 dated August 27, 1993
The reappeal is dismissed.
The grounds of reappeal are examined.
As to the claimant's assertion that there is a ground for a retrial under Article 420 subparagraph 1 of the Criminal Procedure Act in the judgment subject to a retrial, the court below rejected the claimant's assertion on the ground that the claimant's assertion itself cannot be a ground for a retrial under the above provision, or that the sales contract as stated in the final and conclusive judgment was modified. In light of the records, the above judgment of the court below is just and acceptable.
In this case, the fact that the prosecutor took a non-prosecution disposition on the ground of the expiration of the statute of limitations is identical to the theory of lawsuit on the alteration of the sales contract of Non-Indicted 1. However, in order to take such a non-prosecution disposition as a certification in lieu of the final judgment under Article 422 of the Criminal Procedure Act, it is insufficient to say that there was such non-prosecution disposition, and further, the existence of such crime
In addition, with respect to the claimant's assertion that there is a cause for a retrial under Article 420 subparagraph 2 of the Criminal Procedure Act in the judgment subject to a retrial, the court below held that each of the above testimony was final and conclusive as to the testimony of Nonindicted 1 and the testimony of Nonindicted 2-1, or there is no evidence to prove that the above testimony was a perjury, or that there was a evidence to replace the final and conclusive judgment, and on the other hand, the portion of the false statement in the judgment of Nonindicted 2-2's testimony was convicted of perjury, but the above part of the testimony in the judgment of the second instance was decided as guilty, but the testimony, which was admitted as evidence of the judgment subject to a retrial, does not constitute a case where it is proved by a final
Furthermore, the court below's rejection of the claimant's assertion that there are grounds for retrial under Article 420, Article 420, Article 4, 5, and 7 of the Criminal Procedure Act in the judgment subject to a retrial is just and acceptable in the records.
In addition, there is a criticism that the establishment of fact-finding of the judgment subject to a retrial was erroneous, or that it is nothing more than misunderstanding the judgment subject to a retrial based on civil legal theory under the facts different from that of the judgment subject to a retrial.
As pointed out in the judgment of the court below, there is no error of law such as incomplete deliberation, omission of judgment, misunderstanding of legal principles, or violation of the rules of evidence. All arguments are without merit.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jae-soo (Presiding Justice)