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There are grounds for retrial under Article 420 Item 7 of the Criminal Procedure Act and Article 47 Paragraph 3 of the Constitutional Court Act.

2. Determination

Article 420 subparagraph 7 of the Criminal Procedure Act provides, "When it is proved by a final judgment, a judge, a public prosecutor or a judicial police officer who has participated in an original judgment, in the previous judgment, or in an investigation based on the judgment, or in an indictment, commits any offense in connection with his duties," "when it is proved by a final judgment that a crime should be proven by a final judgment under the preceding two Articles, and Article 422 of the same Act provides, "when it is impossible to obtain a final judgment on the grounds of a request for retrial, he/she may obtain a request for retrial after proving such fact: Provided, That this provision provides, "in cases where a final judgment is impossible for lack of evidence," and "when the final judgment is unable to obtain" means cases where a conviction is de facto or legally hindered.

기록에 의하면, 오 소속 수사관들이 1986. 2. 21. 수사권이 없는 민간인인 재심청구인을 임의동행 형식으로 영장 없이 불법적으로 연행한 후, 같은 해 4. 5. 피고인들에 대한 구속영장이 발부될 때까지 외부와의 연락을 차단한 채 불법적으로 감금한 상태에서 구 안전기획부 소속 수사관의 명의를 빌려 수사하였고, 그 수사과정에서 미■■ 조서가 공소의 기초가 된 사실을 인정할 수 있는데, 특별사법경찰관들의 위와 같은 행위는 형법 제124조 ( 불법체포, 불법감금 ) 에 해당된다 .

On the other hand, the crime of illegal arrest and illegal confinement against the defendant by the special judicial police officer is "a punishment of imprisonment with prison labor for not more than seven years and suspension of qualification for not more than ten years". In light of the above date of illegal arrest and illegal confinement, it is apparent that five years have elapsed since the statute of limitations under Article 249 (1) 4 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007). This constitutes "when the final judgment cannot be obtained" under Article 422 of the same Act.

Therefore, even though judicial police officers involved in the judgment subject to review and the investigation based on the judgment prior to that judgment committed a crime related to their duties, there is a ground for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act, since it constitutes a case where final judgment cannot be obtained for the above crime.

3. Conclusion

Therefore, the retrial of this case is on the ground that there is no need to decide on other grounds for retrial in addition to the above grounds for retrial. Therefore, the retrial of this case is decided as per Disposition by the commencement of retrial under Article 435(1) of the Criminal Procedure Act.

Judges Yang Young-hee

Judges Efficacy