[간통][공1991.2.15.(890),670]
Grounds for Retrial against a final judgment dismissing an appeal
A request for a retrial against a final judgment dismissing a final judgment shall be allowed only when there are grounds under Article 421 (1) of the Criminal Procedure Act, i.e., grounds under Article 420 of the same Act, which are stipulated under Article 420 of the same Act, and grounds under subparagraphs 1, 2, and 7 of the same Article. Thus, the judgment of the court below that there exists a ground for retrial under Article 420 (1) of the same Act as to the judgment subject to a retrial which dismissed a final judgment on
Articles 420 and 421 of the Criminal Procedure Act
Supreme Court Order 75Hun-Ba4 Decided March 24, 1976 (Gong1976,9089) (Gong1976,9089), May 27, 1987, and 87 Jae-do4 (Gong1987,1422)
A
Supreme Court Decision 88Do1463 Decided March 14, 1989
The request for retrial is dismissed.
The grounds for request for retrial shall be considered.
1. The judgment subject to a retrial cannot be deemed to have violated Article 12(1) of the Constitution, which provides for the freedom of body, and as long as the facts charged in this case are specified as the time of the original judgment, the complaint of this case filed by the complainant B is legitimate, and the appeal by the requester for a retrial (defendant) is dismissed on the ground that it is not erroneous in the deliberation of facts and there is no error in violation of the rules of evidence as pointed out in the reasoning of the judgment below.
2. Where a new trial in a criminal trial has a reason falling under any of the subparagraphs of Article 420 of the Criminal Procedure Act (hereinafter referred to as the "Act"), a request for a new trial against a final judgment of conviction shall be allowed only where there is a reason under Article 421(1) of the Act, namely, a reason under Article 420 of the Act, and any reason under subparagraphs 1, 2 and 7, among the reasons under Article 420 of the Act (see, e.g., Supreme Court Order 75Do4, Mar. 24, 1976; Order 87Do4, May 27, 1987).
3. However, the judgment subject to a retrial is dismissed on the ground that the judgment below did not find facts based on evidence and did not err by law.
Therefore, on the ground that there is a ground for a retrial under Article 420 subparag. 1 of the Act, the requester for a retrial cannot be deemed a legitimate ground for retrial against the above judgment subject to a retrial, and the ground that the requester for a retrial claims in the ground for a retrial does not constitute
In addition, the grounds for a request for retrial do not constitute grounds for retrial under Article 420 subparag. 7 of the Act, where a public official under Article 420 subparag. 7 of the Act alleged to have committed a crime relating to his/her duties, and the crime is proved by a final judgment, or the evidence substituting a final judgment under Article
4. Therefore, the request for retrial of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices.