[증거보전청구기각에관한재항고][집32(2)형,456;공1984.6.15.(730),928]
A. Whether the procedure for preservation of evidence is permissible in the case of request for retrial (negative)
B. Whether an immediate appeal is filed against a decision to dismiss a request for preservation of evidence (negative)
(a) Where there are circumstances in which evidence to be used in a trial in the future is destroyed or lost, or it is difficult to use it, the preservation procedure for evidence is not allowed in a request for retrial since it is a system to collect and preserve evidence in advance at the request of the parties concerned before the trial is held, and it is permitted only before the first trial date of the first instance.
(b) No appeal may be raised against a ruling dismissing a request for the preservation of evidence;
B. Article 405 of the Criminal Procedure Act. B. Article 184
Re-appellant
Seoul Criminal Court Order 84Ro4 Dated February 17, 1984
The reappeal is dismissed.
1. According to the records, the re-appellant filed a claim for preservation of evidence for requesting on-site inspection and examination of witness in the case of a request for retrial as Seoul District Court's Dong Branch 83 sub-branch 83 sub-branch 83 sub-branch 3, but the mobilization was dismissed on the ground that such request is groundless, the re-appellant is not allowed to file an immediate appeal against this decision, and such immediate appeal is dismissed pursuant to Article 407 (1) of the Criminal Procedure Act, and the court below dismissed the immediate appeal with support of the decision of dismissal of the first instance court as to this immediate appeal. It is obvious that the reappeal
2. The original preservation of evidence is a system that collects and preserves evidence in advance before the date of the first trial at the request of the parties in a case where there are circumstances in which evidence to be used in the future trial has been destroyed or lost or difficult to use (see Article 184 of the Criminal Procedure Act). Therefore, this procedure of preservation of evidence in a case where a request for a retrial has been made shall be interpreted as not permitted. Moreover, there is no objection against an immediate appeal against a ruling dismissing a request for preservation of evidence. Accordingly, the decision of the court below dismissing an immediate appeal is just and it is not possible to say that there is a violation of the Constitution, Act, order, or rule, as provided in Article 415 of the Criminal Procedure Act. Accordingly, the reappeal is groundless.
For the foregoing reasons, the reappeal is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Jeon Soo-hee (Presiding Justice)