[2] Whether a ground for retrial may be considered in the commencement of a retrial that may affect the judgment subject to retrial (negative)

[2] The procedure for a retrial under the Criminal Procedure Act is distinguished from the procedure for commencing a retrial and the procedure for a retrial. Thus, in the procedure for commencing a retrial, only whether there are grounds for a retrial under the Criminal Procedure Act should be determined. Furthermore, the substantive reasons should not be considered as to whether there is a possibility that the

In determining whether a ground for retrial under Article 420 subparag. 7 of the Criminal Procedure Act constitutes a ground for retrial, whether a crime committed by a judicial police officer, etc. has a substantive relationship with a case, or whether a judicial police officer directly takes charge of an investigation of a criminal suspect is not a circumstance (see Supreme Court Order 2004Mo16, May 11, 2006). In addition, since the procedure for retrial under the Criminal Procedure Act is distinct from that for commencing a retrial and that for commencing a retrial, only whether there is a ground for retrial under the Criminal Procedure Act should be determined in the procedure for commencing a retrial, and further, the substantive reasons for a cause for retrial may not be considered.

The court below held that Non-Indicted 1, a police officer belonging to the ○○ Police Station Information and Security Division and Non-Indicted 2, who did not receive 600 million won from the re-appellant on May 30, 2003 upon the request of Non-Indicted 2 who was unable to receive a refund of 600 million won from the re-appellant, and called, "Non-Indicted 1, who is employed in the ○○ Police Station Information and Communication Center. Non-Indicted 2, who is living in the house at any time, will bring about a problem by promptly reporting to the upper court." Then, Non-Indicted 1, a certified copy of the family register concerning the Re-Appellant on June 3, 2003, a certified copy of resident registration, and a certified copy of the resident registration, requested the non-Indicted 2 to refer the criminal records to the Re-Appellant on whom Non-Indicted 2 had been issued to the ○○ Computer Police Station, and that Non-Indicted 1 was guilty of abuse of authority from June 4 to December 12, 20016.

After finding the facts as above, the lower court maintained the first instance court’s ruling dismissing the instant request for retrial on the ground that the instant criminal act did not have any influence on the fairness of the judgment subject to retrial, as long as it cannot be deemed that the investigation of Nonindicted 1’s criminal act was commenced at the time of the instant criminal act, and it cannot be deemed that the instant criminal act constituted “crimes concerning the duties of judicial police officers who participated in the investigation,” and even if the re-appellant asserted the fact that he was threatened in the

However, in light of the above legal principles and records, since the investigation of the re-appellant was commenced on June 19, 200 by reporting it to the ○○ Police Station on June 19, 2003, it is reasonable to view that Non-Indicted 1 was involved in the investigation even if Non-Indicted 1 was not in direct investigation. If Non-Indicted 1's conviction as to the criminal act of this case became final and conclusive and constitutes grounds for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act, if such criminal act constitutes grounds for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act, it shall not be considered in the process of examining whether it might affect the judgment subject to retrial. Thus, the above measures of the court below are erroneous in the misapprehension of legal principles as to the grounds for retrial under Article 420 subparagraph 7 of the Criminal Procedure

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)