Whether "when clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act in a case where there is a recognition of facts that cannot be compatible with the facts in a criminal judgment in the relevant civil final and conclusive judgment after the final and conclusive judgment of a criminal case.

Article 420 Subparag. 4 of the Criminal Procedure Act provides for grounds for retrial when a judgment based on evidence of the original judgment has been changed according to the final and conclusive judgment. Thus, this is premised on the fact that the judgment can be used as evidence in the criminal litigation case. However, the judgment that can be used as evidence in the criminal litigation case under the principle of free evaluation of evidence under the same Act, the hearsay rule, or the principle of directism should be interpreted as limited. In addition, since there was a recognition of facts that cannot be compatible with the facts recognized in the criminal judgment in the relevant civil final and conclusive judgment after the final and conclusive judgment, the existence of such civil final and conclusive judgment does not constitute “when clear evidence has

Article 420 subparagraph 5 of the Criminal Procedure Act

Claimant

Seoul High Court (84No138,959 (Joint Judgment)

The request for retrial is dismissed.

1. Summary of grounds for request for retrial;

In the above final and conclusive judgment, the defense counsel who requested the retrial is guilty of the crime of occupational embezzlement on the ground that the former owner deposited the money in collusion with Defendant 1 of the said branch office as the joint principal offender of the crime of occupational embezzlement. However, after the said judgment became final and conclusive, the Supreme Court in the above lawsuit of claim for the return of deposit against the said former owner and the said bank did not establish a deposit contract between the said former owner and the said bank. Thus, the above lawsuit of claim for deposit is final and conclusive against the plaintiff. Thus, since the applicant for the retrial and the owner (victim) of the money embezzled by Defendant 1 in the above final and conclusive judgment are obviously not the above bank, it is argued that the above judgment is a civil judgment of the Supreme Court, and therefore, the applicant for the retrial and the above owner (victim) of the money embezzled by Defendant 1 were not the above bank.

2. Determination:

Article 420 Subparag. 4 of the Criminal Procedure Act provides for grounds for retrial when a judgment based on evidence of the original judgment has been changed according to the final and conclusive judgment. Thus, this is premised on the fact that the trial can be evidence in a criminal litigation case. However, the judgment that can be admitted as evidence in a criminal litigation case according to the principle of free evaluation of evidence under the current Criminal Procedure Act, the hearsay rule, or the principle of directism should be interpreted as limited. In addition, the existence of a civil final and conclusive judgment does not constitute “when clear evidence has been newly discovered” as provided in Article 420 Subparag. 5 of the Criminal Procedure Act on the ground that there was a recognition of facts that cannot be compatible with the facts recognized in

Supreme Court Decisions 83Do293 Decided October 22, 1985; 83Do293 Decided October 22, 1985; 83Do293 Decided the administrative litigation that revokes the disposition imposing taxes has become final and conclusive in light of the validity of the final and conclusive judgment, the said final and conclusive administrative judgment serves as clear evidence to acknowledge the crimes that are less severe than those recognized by the original judgment on the tax evasion, and thus,

Therefore, since the request for retrial of this case is groundless, it is decided as per Disposition by Article 434 of the Criminal Procedure Act.

Judges Lee Young-han (Presiding Judge)