[2] The case holding that although an application for adjudication filed by the defendant against a judicial police officer who illegally detained the defendant during the investigation process was dismissed, the above police officer's involvement in an investigation that constitutes grounds for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act on the ground that the above police officer was "participation in an investigation that constitutes the basis for prosecution"

[2] The case holding that although an application for adjudication filed by the defendant against a judicial police officer who illegally detained the defendant during the investigation process was dismissed, the above police officer's involvement in an investigation that constitutes grounds for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act, on the ground that the above police officer participated in an investigation that constitutes the grounds for retrial under the above Act

1. As to whether the grounds for retrial under Article 420 subparag. 7 of the Criminal Procedure Act constitute grounds for retrial

According to the records and reasoning of the order of the court below, the court below, on October 2, 1994, asserted that the re-appellant was subject to illegal confinement in the process of investigation command as the chief of the police station chief of the police station and the above police station chief of the above police station, and that he was subject to investigation on the criminal case by Non-Indicted 2, etc. who supervised the execution of the warrant. The prosecutor's office issued a detention warrant after about 24 hours of request for the warrant and issued it by the judge. However, as to Non-Indicted 2, the prosecutor's order of suspension of indictment was not based on evidence that he was aware of the illegal confinement as to Non-Indicted 1, 195, and it was not based on evidence that the above facts of the above illegal confinement were not proven in the court's final judgment, but based on evidence that Non-Indicted 2's request for retrial was not based on the prosecutor's request for retrial, which was based on the grounds that it was not based on evidence of the court's final judgment. However, the above court's dismissal was justified.

However, according to the records, although the above non-indicted 2 did not directly investigate the re-appellant in the criminal investigation process against which the indictment was instituted against the re-appellant, it was observed that the prosecutor raised the warrant of investigation command to the prosecutor and notified the re-appellant of detention, and that the written opinion was prepared in case transfer to the prosecutor. Thus, as long as the non-indicted 2 participated in this process, it shall be deemed that the non-indicted 2 participated in the investigation which is the basis of the prosecution" under Article 420 subparagraph 7 of the Criminal Procedure Act, and it shall not be considered whether the crime related to the duties committed by the judicial police officer, etc. in determining whether the crime falls under the grounds for a retrial under Article 420 subparagraph 7 of the Criminal Procedure Act is a substantial relation to the case,

Nevertheless, the court below held that it does not constitute grounds for retrial under Article 420 subparag. 7 of the Criminal Procedure Act to which Nonindicted 2 received a decision of suspension of indictment and a decision of application for adjudication on the grounds of its holding that it does not constitute grounds for retrial under Article 420 subparag. 7 of the Criminal Procedure Act. Thus, the court below erred by misapprehending the legal principles as to evidence substituting a final judgment under Article 422 of the Criminal Procedure Act and grounds for retrial under

2. As to whether other grounds for retrial exist

A. According to the record, among the grounds for retrial of the re-appellant's grounds for retrial, Nonindicted 3, 4, 5, and 6, etc. who were on board the victimized vehicle were allowed to be hospitalized in the hospital or to be issued a diagnosis, and requested Nonindicted 7, who was a witness, to make a false statement. In addition, the argument that Nonindicted 8 issued a false diagnosis to Nonindicted 4, 6 is related to the grounds for retrial under Article 420 subparag. 1, 4, and 5 of the Criminal Procedure Act, but there is no evidence to prove that there was "a final judgment" as required under the above provision. The materials submitted by the re-appellant cannot be deemed to have satisfied the requirements of "when clear evidence to acknowledge innocence was found" under Article 420 subparag. 5 of the Criminal Procedure Act, and ② Nonindicted 3 or 5 did not escape at the time of investigation, and it cannot be deemed that there was no evidence that the prosecutor did not have any influence on the duty of the non-indicted 4 and the prosecutor's office did not make any statement or investigation.

B. In addition, according to the records, the grounds for retrial against the Supreme Court Decision 9Do2400 Decided February 8, 1994 (Supreme Court Decision 93Do2400 Decided February 8, 1994) are as follows: (a) as the Re-Appellant filed a lawsuit claiming compensation against the State for damages on the ground that the Re-Appellant was illegally detained as above at the time of the investigation of the criminal case subject to review [the Daejeon District Court (case No. 999) case], although the judgment ordering payment of consolation money to the State was affirmed, it is recognized that the above civil judgment does not constitute evidence of the above criminal case; (b) as the above civil judgment does not constitute grounds for retrial under Article 420 subparagraph 4 of the Criminal Procedure Act; (c) the appellate court judgment on the above criminal case does not constitute legitimate grounds for appeal in this case; and (d) there is no ground for retrial that the victim’s decision of unconstitutionality as to the criminal case subject to a final judgment of unconstitutionality under Article 5-3 (1) 2 of the Act, which was declared by the Constitutional Court.

3. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)