Defendant (Appellant) 1 and 12 others

Defendants

Law Firm Oil (Attorney Kang-ho et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2010 High Court Decision 396 decided August 5, 2010

Suwon District Court Order 2019 Inventory 2 dated August 27, 2019

The immediate appeal of this case is dismissed.

1. Summary of grounds for appeal;

The judgment subject to retrial was found guilty of the facts charged of defamation and defamation by publication on the ground that the re-appellant, including Nonindicted 1, did not intervene in the organization and operation of the labor union or in withdrawal from the private labor union, on the ground that he/she distributed a false publication stating the opposing facts, and made an interview with Nonindicted 1, etc., thereby impairing the reputation of the management of the non-indicted 1, etc. However, the judgment subject to retrial was found to be unlawful in the judgment subject to retrial: (i) to prove that the re-appellant did not indicate any false facts after the judgment subject to retrial, (ii) to prove that he/she was not guilty, (iii) to the article of △△△△△ on May 27, 2015, (i) to the article of △△△△△△ on March 30, 2018, (iv) to which Nonindicted 2, Nonindicted 3, and Nonindicted 2, etc. were newly discovered at the meeting of the branch of the branch of the non-indicted 1, 2018.

2. Determination

In determining whether a new evidence constitutes “clear evidence to acknowledge innocence, etc.” under Article 420 subparag. 5 of the Criminal Procedure Act, the court shall not independently and separately examine only the newly discovered evidence and determine whether to commence retrial based solely on the evidence. Rather, the court shall consider the newly discovered evidence and the evidence closely related and inconsistent with the newly discovered evidence among the evidence used as the basis of fact-finding by the court which rendered the final judgment subject to retrial. As a result, in a case where it is highly probable as to the final judgment of conviction subject to retrial beyond the level of doubting legitimacy of the final judgment, the new evidence constitutes “clear evidence” under the aforementioned provision. If a court examines only the newly discovered evidence independently and separately, and evaluates and determines apparentness, the new evidence constitutes “clear evidence” under Article 420 subparag. 5 of the Criminal Procedure Act, and thus, the grounds for retrial are excessively limited due to permission to commence retrial only when it has evident value to acknowledge innocence, etc. by itself. This is contrary to the purport of the retrial system (see, e.g., Supreme Court en banc Decision 2006Mo174.

In light of the above legal principles, even if the materials submitted by the applicant for a retrial were closely examined in light of the grounds for appeal by the applicant for a retrial, it is difficult to find that there is a new evidence to acknowledge innocence as to the applicant for a retrial to the extent that it is impossible to maintain the original judgment as it is. Unlike the above, there is no ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act in the instant judgment subject to a retrial.

3. Conclusion

Therefore, the retrial of this case is dismissed in accordance with Article 434 (1) of the Criminal Procedure Act, since there is no reason to do so, and the judgment of the court below in the same conclusion is just and there is no ground to appeal of this case, and it is dismissed in accordance with Article 414 (1) of the Criminal Procedure Act. It is so decided

Judges Kim Jung-Nam (Presiding Judge)