The meaning of "when clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act

The so-called "when clear evidence is newly discovered" as referred to in Article 420 subparagraph 5 of the Criminal Procedure Act refers to evidence that was not discovered in the litigation procedures of the final judgment subject to review or that it was impossible to submit or examine even if it was discovered, and the value of evidence is recognized as objective superior to the evidence that the final judgment is based on the fact-finding data.

Article 420 subparagraph 5 of the Criminal Procedure Act

Supreme Court Order 85Mo32 Decided September 28, 1985

Re-appellant

Daegu High Court Order 19 September 19, 1985, 85Ra8

The reappeal is dismissed.

The gist of the grounds for retrial of this case by the re-appellant is that there was no intention to kill the victims at the time of the crime, and thus, the application of the crime of death or bodily injury to the victims cannot be applied even after the crime was committed. The crime of this case constitutes self-defense or excessive defense which is deferred in various circumstances at the time of the crime. Furthermore, the crime of this case is committed in the state of mental disorder by the re-appellant's high blood pressure and excessive smoking rise effect, which can be easily proven through inquiry, etc., and the testimony of the witness assistance economy as evidence in the original judgment is forced to make a false confession after being exposed to false and serious sacity and intimidation at the investigation stage. In addition, the protocol of suspect examination prepared by the judicial police officer and on-site verification investigation prepared unilaterally at the trial stage was evidence of the original judgment. On the other hand, since the examination and investigation were neglected to clarify the truth of the case at the trial stage, it does not comply with the provisions of Article 422, Article 420 subparagraph 2 and Article 7 of the Criminal Procedure Act.

However, the so-called "when clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act refers to evidence that was not discovered in, or could not be submitted or examined even if it was discovered in, a final judgment procedure subject to review, and the value of such evidence is recognized as objective superior to that of the final judgment. Thus, as the re-appellant appears to be such evidence, it cannot be viewed that the mental appraisal or fact inquiry about it constitutes such evidence, and there is no other obvious evidence newly discovered. Meanwhile, in order to fall under the reasons for retrial under Article 420 subparagraphs 2 and 7 of the above Article 420, the witness who was proved in the original judgment did so, or a judge, prosecutor, or senior judicial police officer did not only commit a crime related to his duties, but also is punished and the judgment becomes final and conclusive. Thus, the reason for the re-appellant's assertion does not constitute a ground for retrial under any subparagraph of Article 420 of the Criminal Procedure Act. In addition, unless the ground for the re-appellant's claim for retrial does not constitute a ground for requesting a retrial.

Therefore, the judgment below that held the above opinion is just and without merit.

Therefore, the reappeal is dismissed, and it is so decided as per Disposition by the assent of all participating judges.

Justices Jeon Soo-soo (Presiding Justice)