(b) Whether the participation in the previous trial which is the cause of challenge in the exclusion includes participation in the decision subject to review;

(c) Disposition under Article 432 of the Criminal Procedure Act

B. Article 18 (1) 1 of the Criminal Procedure Act and Article 17 subparagraph 7 of the same Act concerning the case "where a judge, who is the cause of challenge or exclusion, participates in the previous trial or an investigation and hearing on the basis of which a judge is involved in the case," refers to the previous trial on the case in which an appeal has been filed, and it does not constitute a case subject to retrial in the case of a request for retrial. Thus, even if a judge (A) participated in the first instance of the judgment subject to retrial, it does not constitute a cause of exclusion or challenge in the case of the request for retrial in

C. The purport of Article 432 of the Criminal Procedure Act that the requester and the other party shall hear the opinion in making a decision on the request for retrial is that the Re-Appellant shall be given an opportunity to hear the opinion or make a statement. Thus, even though the Re-Appellant, who is the applicant for a retrial, provided an opportunity to make a statement by delivering a written request for opinion to the Re-Appellant, it cannot be said that the Re-Appellant did not

1. Article 420 Subparag. 5 of the Criminal Procedure Act provides that "when clear evidence to acknowledge a crime committed by a person who has been pronounced guilty is newly discovered with respect to the exemption from punishment or acquittal of the person who has been pronounced guilty, or with respect to the person who has been sentenced to a punishment more severe than the offense recognized by the original judgment," refers to the time when the final judgment was not found in the litigation procedures of the final judgment subject to retrial, or where no such evidence has been submitted or no examination has been possible, and the evidence newly discovered or submitted that the objective superior advantage is recognized compared with the value of other evidence in the value of evidence, and thus, the court below is just in rejecting the request for retrial of this case on the grounds that the appellant was newly discovered or that the appeal does not constitute

2. The "where a judge participates in the previous trial or an investigation based on which a judge is challenged or excluded in accordance with Article 18 (1) 1 and Article 17 subparagraph 7 of the Criminal Procedure Act" refers to the previous trial of the case in which a request for objection was made, and the case subject to a retrial is not applicable to the case in which a request for retrial was made. Thus, even if a judge participated in the first trial of the final and conclusive judgment subject to a retrial against the re-appellant, this does not constitute a ground for exclusion or challenge in the case of the request for retrial of this case, and there is no reason for this issue.

3. According to each of the statements in the written request for opinion filed in the records (39,40) and the service report (47) of this case, the court below accepted the written request for reexamination of this case and sent the written request for opinion on the request for reexamination to the re-appellant and the prosecutor prior to the deliberation, and it is evident that the re-appellant sent the written request for opinion on the request for reexamination to the re-appellant on November 9, 1981. Thus, the purport of Article 432 of the Criminal Procedure Act is that the provision that the requester and the counter-appellant should hear the opinion or give the opportunity to state their opinion. Thus, even though the re-appellant provided the opportunity to state their opinion, it cannot be said that the court below erred in the trial procedure because the re-appellant did not state his opinion, and the facts charged of this case are not a legitimate ground for

4. Therefore, the reappeal is dismissed as it is so decided as per Disposition by the assent of all participating judges on the ground that the reappeal is without merit.

Justices Lee Il-young (Presiding Justice)