The meaning of “a case where other important evidence is discovered” under the latter part of Article 262(4) of the Criminal Procedure Act, and whether the case where there is evidence to the extent that there is a need to proceed in criminal proceedings in order to protect the rights of crime victims or that there is doubt as to the legitimacy of the decision to dismiss an application for adjudication, constitutes a case where there is evidence to the extent that it is necessary to conduct criminal proceedings in order to protect the rights of

The latter part of Article 262(4) of the Criminal Procedure Act provides that a case for which a decision to dismiss an application for adjudication has become final and conclusive may not be prosecuted unless other important evidence is found. Here, “the case of discovery of other important evidence” refers to the case where there is sufficient evidence to prove sufficient conviction if the newly discovered evidence is added to the newly produced evidence at the time of the decision to dismiss the application for adjudication, and it does not constitute a case where there is sufficient evidence to the extent that the decision to dismiss the application for adjudication is doubtful or that there is a need to proceed the criminal procedure to protect the rights

In addition, the fact-finding and judgment in the relevant civil judgment can not be said to be a new evidence, apart from the fact-finding and judgment that evidence, which served as the basis of such fact-finding and judgment, can constitute new evidence.

Article 262(2)1 and (4) of the Criminal Procedure Act

Defendant

Defendant

Law Firm LLC, Attorneys Yu-nam et al., Counsel for the plaintiff-appellant-appellant

Seoul High Court Decision 2014No708 decided November 20, 2014

The judgment of the court below is reversed. The prosecutor's appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The latter part of Article 262(4) of the Criminal Procedure Act provides that a case for which a decision to dismiss an application for adjudication has become final and conclusive may not be prosecuted except where other important evidence is found. Here, “the case of discovery of other important evidence” refers to a case where there is sufficient evidence to lead to sufficient conviction if the newly discovered evidence is added to the newly discovered evidence at the time of the decision to dismiss the application for adjudication, and it does not constitute a case where there is sufficient evidence to the extent that there is doubt as to the legitimacy of the decision to dismiss the application for adjudication or that there is a need to proceed

In addition, the fact-finding and judgment in the relevant civil judgment can not be said to be a new evidence, apart from the fact-finding and judgment that evidence, which served as the basis of such fact-finding and judgment, can constitute new evidence.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On April 2007, the complainant filed a complaint with the prosecution against the defendant on the ground that he had the intention or ability to perform the obligation to pay the balance under the sales contract for ten households apartment owned by the complainants (hereinafter “the instant sales contract”), but had the complainant purchased the said apartment and completed the registration of ownership transfer, thereby having acquired a total of KRW 4.56 billion in total, including the balance, etc., by deceiving the complainants and completing the registration of ownership transfer.

B. On October 31, 2007, the prosecution issued a disposition of non-prosecution on the grounds that it is difficult to recognize the criminal intent by deception, and thereafter dismissed the appeal filed by the complainant. The complainant filed an application for the Seoul High Court on the grounds of the application, but the Seoul High Court decided to dismiss the application for adjudication on April 4, 2008 (hereinafter “decision to dismiss the application for adjudication of this case”), and the above decision became final and conclusive around that time.

C. Around March 2012, the complainant filed a complaint with the Defendant, etc., including the facts alleged in the above A. A, and the prosecutor filed the instant prosecution with the Defendant using the facts alleged in the A. A as the facts charged.

D. The Seoul High Court Decision 2008Na17207 decided on the dismissal of the instant application for adjudication, the victim’s statement, Nonindicted 1, 2, 3, 4, and 5’s statements, etc., as evidence submitted after the instant application for adjudication was dismissed.

3. We examine, based on the foregoing factual basis, whether the evidence submitted after the dismissal ruling of the instant application for adjudication constitutes “the discovery of other important evidence” as referred to in the latter part of Article 262(4) of the Criminal Procedure Act in light of the aforementioned legal principles.

A. The Seoul High Court Decision 2008Na17207 decided on the interpretation of the sales contract of this case in terms of civil legal relations, the violation of the contract of the defendant and the validity of the cancellation of the contract of this case. Unlike the fact-finding and judgment with the Seoul Western District Court Decision 2007Gahap422, the first instance court, recognized that the sales contract of this case was lawfully rescinded due to the cancellation of the contract of the complainant due to the defendant's nonperformance of obligation, but the above appellate court's judgment cannot be deemed new evidence, and further, the above appellate court's judgment does not include the contents of the defendant's deception or fraud

Therefore, the evidence of Seoul High Court Decision 2008Na17207 or its judgment, which is the basis of the instant sales contract, cannot be deemed as a new evidence to have sufficiently convicted the Defendant of deception and deception to the extent that it could be recognized that the Defendant had committed deception and deception.

B. The victim’s statement is nothing more than the same purport as the statement prior to the decision of dismissal on the instant application for adjudication, and does not contain any new content supporting the instant facts charged. Therefore, it cannot be deemed as a new evidence to have sufficiently convicted the Defendant to the extent that it could be recognized that the Defendant had a deception and fraud at the time of the instant contract.

C. The statement of Nonindicted 1, 2, 3, 4, and 5, etc. is insufficient to conclude that there was the Defendant’s deception and deception at the time of the instant sales contract, or is merely a statement that is not directly related to the instant facts charged, and there is no special circumstance to deem that their statements are objectively reliable, and thus, it cannot be deemed that there is a new evidence to have sufficiently convictions of guilt to the extent that it can be recognized that there was the Defendant’s intent of deception and deception at the time of the instant sales contract.

4. Therefore, even if the newly submitted evidence by the prosecutor after the decision to dismiss the application for adjudication of this case became final and conclusive, it cannot be deemed that the prosecution of this case does not constitute “the case where other important evidence is discovered after the decision to dismiss the application for adjudication becomes final and conclusive” under the latter part of Article 262(4) of the Criminal Procedure Act, and thus, it should be deemed unlawful.

Nevertheless, the lower court determined otherwise on the erroneous premise that the instant public prosecution constituted “cases where other important evidence is discovered” solely based on evidence to the extent that it is doubtful the legitimacy of the decision to dismiss an application for adjudication or that it is necessary to conduct a criminal trial in order to protect the rights of crime victims, and thus, was lawful. In so doing, the lower court erred by misapprehending the legal doctrine on the latter part of Article 262(4) of the Criminal Procedure Act, thereby adversely affecting the conclusion of the judgment.

5. Therefore, the judgment of the court of first instance that dismissed a public prosecution pursuant to Article 327 subparag. 2 of the Criminal Procedure Act is reversed, but this case is deemed sufficient for the Supreme Court to directly render a judgment. As seen earlier, the public prosecution of this case constitutes a case where the public prosecution procedure becomes invalid in violation of the provisions of law, and thus, the judgment of the court of first instance that dismissed the public prosecution pursuant to Article 327 subparag. 2 of the Criminal Procedure Act is just, and the public prosecutor’

Justices Kwon Soon-il (Presiding Justice)