Whether it constitutes a ground for appeal under Article 383 subparag. 3 of the Criminal Procedure Act in a case where a person other than the defendant, who was convicted at the appellate court, has again been prosecuted as a criminal defendant (affirmative)

The facts charged that Gap brought an action against the defendant for causing a traffic accident while driving an Ortob in Eul after Eul's boarding, which led to the occurrence of an injury, but Gap denied his driving at the time of the accident, but the first and second trials found guilty, which led to the occurrence of an accident by Eul in the course of re-investigation by the plaintiff's carbon sources, and then the military prosecutor tried to institute a public action against the military court due to a violation of the Act on Special Cases concerning the Settlement of Traffic Accidents because the military prosecutor designated him as a person who caused a traffic accident by Eul and designated him as a person who caused a traffic accident by the military prosecutor, there is a new ground for retrial as stipulated in Article 420 subparagraph 5 of the Criminal Procedure Act against the judgment of the court below against Gap.

Article 383 subparag. 3 and Article 420 subparag. 5 of the Criminal Procedure Act

A

Defendant

Attorney B and one other

Military Court of the Army, High School, 199No416 delivered on April 17, 1990

Each defense counsel's grounds of appeal are examined together.

1. The summary of the facts charged of this case is as follows: "Around June 21, 1989.21:50, the defendant was found guilty of the facts charged in full view of the defendant's statements in the court of first instance and the statements in the first and second protocol of examination of witness C andG of the court of first instance and each protocol of examination of witness andG of the court of first instance, and the court below rejected the grounds for appeal on the grounds that the facts charged can be fully acknowledged, by taking into account the aforementioned evidence adopted by the court of first instance and the testimony of the witness H and I of the court of first instance, and the testimony of the court of first instance, and the testimony of the witness H and I of the court of first instance.

2. The first instance court examined the above evidence by comparing it with the records and records, and (i) the defendant consistently conducted an investigation into the case with a police officer stationed at the police station immediately after the traffic accident of this case, and up to the trial date of the lower court, as well as with a military judicial police officer who continued to investigate the case. On behalf of the victim C who had been living in a high school on the day of the accident, he would have been able to carry C with the lower court and drive Oral Bab on the back of the c, and he would have been able to drive Oral Bab, and (ii) the court below denied the crime by changing C's place and driving Oral Bab, and (iii) the defendant was working at the police station having jurisdiction over the place where the accident of this case occurred, and after receiving the report of the accident of this case, he did not have any evidence that the victim was able to have been present at the time of the accident, and thus, he did not have any traffic accident, and (f) the court below found the victim's witness to have been present at the accident.

3. However, according to the contents of the transcript of the indictment prepared by the military court clerk of the fifth general military court of the Army Corps, which was accompanied by the appellate brief by the attorney J, and the transcript of the investigation records prepared by the military court clerk of the fifth general military court of the Army Corps of the Korean Army Corps of the Korean Army Corps of the Korean Army Corps of the Korean Army Corps of the Korean Army Corps of the Korean Army. On July 13, 1990 after the defendant was convicted of the judgment of conviction at the court of first instance and the court below, he again investigated the parties to the case, including the above C, who were discharged from the Army Investigation Corps of the Korean Army Corps of the Korean Army Corps of the Korean Army Tribunal of the Korean Army Tribunal of the Korean Army Tribunal of the Korean Army Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Tribunal of the Korean Army.

In light of the facts, there are grounds for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act, where there is a new evidence to acknowledge innocence against a person who has been sentenced to a crime, and there is a ground for appeal falling under "when there is a ground for retrial" under Article 338 subparagraph 3 of the same Act. Thus, there is a ground for appeal that points out the above, and the judgment of the court below is not reversed in this regard.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)