Reopening of procedure in a criminal trial shall be allowed only for a final judgment dismissing an appeal or final appeal against a final and conclusive judgment of conviction or conviction pursuant to Articles 420 and 421(1) of the Criminal Procedure Act.

Since a judgment of acquittal cannot be deemed a final and conclusive judgment of conviction, a request for retrial against a judgment of acquittal is unlawful (see Supreme Court Order 2013Do29, April 25, 2014; Supreme Court Order 2015Mo3243, May 2, 2018).

However, the lower court determined that, on the grounds that the Presidential Emergency Decree (Presidential Emergency Decree No. 9, May 13, 1975) was released for the national security and the protection of public order, the reexamination may be permitted as an object of the request for reexamination on the grounds of the reasons stated in its holding, against the judgment that acquitted the Defendant (Seoul District Court Decision 79Da588, Dec. 15, 1979).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court erred by misapprehending the legal doctrine regarding Article 420 of the Criminal Procedure Act, thereby adversely affecting the judgment

Therefore, the order of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

April 2, 2021

Justices Min Min-young

The chief Justice Justice shall mobilized

Justices Noh Tae-ok