[법관기피신청기각결정에대한재항고][공1992.2.1.(913),548]
A. Whether the full bench's failure to adopt a party's application for examination of evidence constitutes a cause of judicial evasion (negative)
(b) Whether the full bench composed of a judge who was challenged for the purpose of delaying a lawsuit can dismiss him/her (affirmative)
A. Article 18(1)2 of the Criminal Procedure Act provides that “When there is a possibility that a trial will be held in an unfair manner” refers to the time when there is a subjective circumstance that the parties would be unfair to judge, not to refer to the time when there is any objective circumstance that is reasonable to recognize that a trial would be held in an unfair manner in relation to a case with a judge. Therefore, the full bench cannot be said to have an objective reason that it is difficult to expect a fair trial just because it did not adopt a party’s application for examination as evidence.
(b) A motion for challenge for the purpose of delaying a lawsuit is unlawful in itself, and as to such a motion, the full bench composed of the challenged judges may dismiss it by itself.
(a) Article 18 subparagraph 2 and Article 295 of the Criminal Procedure Act;
A. Supreme Court Order 87Du10 Dated October 21, 1987 (Gong1987, 1802) dated November 2, 1990 (Gong1991, 669). Supreme Court Order 85Mo19 Dated July 8, 1985 (Gong1985, 1307) dated July 23, 1985 (Gong1985, 1309) dated 87Mo20 Dated March 30, 1987 (Gong1987, 1104)
A
Seoul High Court Order 91 seconds260 dated November 22, 1991
The reappeal is dismissed.
Article 18(1)2 of the Criminal Procedure Act provides that "when a trial is likely to be held in an unfair manner" does not mean the time when there is any subjective reason that the parties might be the unfair judgment, but it refers to the time when there are objective circumstances that are deemed reasonable to hold a suspicion that it would be unfair judgment in relation to a case with a judge (Notice 90Mo44, Nov. 2, 1990). Thus, even if the full bench did not adopt a party's application for examination as evidence, it cannot be said that there is an objective reason that it is difficult to expect the fair trial due to such circumstance.
Since a motion for challenge for the purpose of delay of litigation itself is inappropriate in itself, it is interpreted that the full bench composed of the challenged judges can dismiss such motion (see Supreme Court Order 85Hun-Ba29, Jul. 8, 1985). According to the records, the period of detention of the Defendants involved in the principal trial of this case has expired on December 15, 1991, and the court below should close the trial before and render a judgment. The defendant has been absent three times or more from the date of trial using the state of non-detained, and has already been investigated by the investigation agency at the first instance court and has completed the examination of evidence at the date of November 22, 191, and applied as a witness of the investigation in the first instance court, and it is obvious that the court below's dismissal of the motion for challenge against all judges of the full bench is an application for delay of litigation only for the purpose of delay of litigation.
Therefore, the court below's rejection of the motion for challenge of this case is just and there is no error as pointed out by the theory of lawsuit. The reappeal cannot be employed.
Therefore, the reappeal is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)