(2) The legality of the motion for challenge against a judge excluded from the execution of the duties of the case in question

The reasons for allowing the defendant to challenge a judge in criminal proceedings are that in a case where there is a cause for exclusion or there is a concern about unfair judgment from a judge in charge of a specific case, the judge who has such cause is excluded from the execution of duties of the case so that the defendant can receive a fair trial. Thus, if a judge who is the object of challenge has already been excluded from the execution of duties of the specific case, the defendant's challenge against the judge is unlawful.

Article 18 of the Criminal Procedure Act

Re-appellant

Msan District Court Order 86Ro8 dated September 2, 1986

The reappeal is dismissed.

The grounds of reappeal are examined.

1. The re-appellant is not allowed to invoke the contents of the motion for challenge and the written appeal submitted to the court below as the ground for reappeal of this case. However, it is not allowed to invoke the ground for reappeal of this case without specifically stating it in the re-appeal or the ground for reappeal (see Supreme Court Order 86Mo42 delivered on September 10, 1986).

2. The reason why the criminal procedure provides for the defendant to file a motion for challenge of a judge is that in a case where there are grounds for exclusion or there is a concern about unfair judgment for the judge in charge of specific cases, the judge who has such grounds excludes the judge from the execution of duties of the case so that the defendant can receive a fair trial. Thus, if the judge who is the object of challenge has already been excluded from the execution of duties of the specific case, the motion for challenge against the judge is unlawful.

The court below's measure of maintaining the decision of the court of the first instance that had dismissed the motion for challenge against a judge already retired on the same ground is legitimate, and there is no unlawful ground for it.

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

Justices Lee B-soo (Presiding Justice)