Whether the statement in co-defendant's court constitutes evidence of the original judgment under Article 420 No. 2 of the Criminal Procedure Act (negative)

The testimony in the original judgment stipulated in Article 420 subparagraph 2 of the Criminal Procedure Act refers to the testimony of the witness who has taken an oath by law, and the statement in the trial court of the co-defendant does not correspond to this.

Article 420 subparagraph 2 of the Criminal Procedure Act

Defendant

Seoul High Court Order 81Nu6 dated April 16, 1985

The reappeal is dismissed.

The grounds of reappeal are examined.

The testimony in the original judgment as stipulated in Article 420 Item 2 of the Criminal Procedure Act refers to the testimony of the witness who has taken an oath under the law, and the statement in the court of co-defendant does not correspond to this point. Therefore, the court below's rejection of the Re-Appellant's argument that the statement in the court of first instance of co-defendant and co-defendant constitutes grounds for retrial as stipulated in Article 420 Item 2 of the Criminal Procedure Act because the statement in the court of first instance is false to the same purport is justifiable. From other perspective, the judgment below is groundless because it is based on the premise that the statement

In addition, evidence of guilt against the defendant is the statement at the investigation agency and the court of first instance, which is not the purchase of damp drugs from the defendant after the conviction became final and conclusive, and it constitutes the case where clear evidence under Article 420 subparagraph 5 of the Criminal Procedure Act is newly discovered. However, according to the records, it is obvious that the co-defendant has already made the statement of the same contents as the above in the above notarial deed in the court of second instance. Thus, it cannot be viewed as the case where clear evidence of the above notarial deed is newly discovered. There is no argument about this issue.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)