[1] The meaning of "the testimony that has been proved by the original judgment" under Article 420 subparagraph 2 of the Criminal Procedure Act

[2] The case holding that the portion of perjury does not constitute "a testimony which has been proved by the original judgment" under Article 420 subparagraph 2 of the Criminal Procedure Act

[1] In order to constitute a ground for a retrial under Article 420 subparagraph 2 of the Criminal Procedure Act, there should be proof that the testimony which was admitted by the original judgment was false by the final judgment or that which was substituted by the final judgment under Article 422 of the same Act. Here, the testimony which was admitted as evidence in this context refers to the testimony which was admitted as evidence among the grounds in the original judgment and admitted as a crime (criminal fact). Thus, the testimony cited as evidence in the grounds in the original judgment should be directly or indirectly related to the "fact that constitutes a crime".

[2] The case holding that the part of perjury does not constitute "the testimony of the original judgment" under Article 420 subparagraph 2 of the Criminal Procedure Act on the ground that it cannot be deemed that it constitutes a crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. of Sexual Crimes in the judgment subject to a retrial, but it is a somewhat exaggerated statement about the circumstances after rape.

[1] Article 420 subparagraph 2 of the Criminal Procedure Act / [2] Article 420 subparagraph 2 of the Criminal Procedure Act

[1] Supreme Court Order 87Mo11 dated April 23, 1987 (Gong1987, 1162) Supreme Court Order 95Mo38 dated January 16, 1997 (Gong1997Sang, 689)

Appellants

Busan High Court Decision 95No476 delivered on August 10, 1995

The motion for retrial of this case is dismissed.

1. Determination of the judgment subject to a retrial and the grounds for request for retrial

A. Determination of the original judgment

On April 6, 1995, the applicant for a retrial was sentenced to 10 years of imprisonment with prison labor for a violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, and the Punishment of Violences, etc. Act. The judgment of the court below was reversed on August 10 of the same year and sentenced to 8 years of imprisonment with prison labor for the defendant at the Busan High Court, which is the second instance court upon appeal by the applicant for a retrial. Although the applicant for a retrial filed a second appeal, the appeal was dismissed on November 24 of the same year by the Supreme Court, which became final and conclusive.

(1) On September 24, 1994, the summary of the crime of a petitioner for a retrial recognized in the judgment subject to retrial is as follows: (1) the victim 1 and 2 were forced to appear in the back of the passenger car; (2) on September 24, 1994, the victim 1 was raped; (3) on September 25, 194, the victim 2; (4) on September 25, 1994, the victim 1 was raped again; (2) on September 12:0, 1994; (3) on September 25, 1994, the victim 2; (4) on September 25, 1994, the victim 1 and 3: (3) the victim 1 were raped with the victim 1; (4) the victim 2; (5) the victim was raped with the victim 1; (3) the victim 2; (4) the victim 1 and the victim 1; (5) the victim 1 and 2) the victim 2.

B. Summary of grounds for the request for retrial by the requester

Since 1 and 2 victims attend the court as a witness and the testimony was mostly perjury, it is the purport that there is a ground for retrial under Article 420 subparagraph 2 of the Criminal Procedure Act.

2. Existence of grounds for retrial

A. As to the statement of the part of the suspension of indictment

On September 25, 1998, the prosecutor recognized that the part of the victim 1's statement, "I have been treated as eating at the hospital because he was pregnant," and "I have difficulty in doing so at the hospital after he was pregnant," in the victim 2's statement, constitutes an perjury, and thus the prosecutor suspended the indictment for each of them, and the applicant for a retrial appealed against it, but dismissed each of them.

In order to constitute a ground for retrial under Article 420 subparag. 2 of the Criminal Procedure Act, there should be proof that the testimony based on the original judgment was false by the final judgment or that it was substituted by the final judgment under Article 422 of the same Act. In this context, the testimony based on the original judgment refers to the testimony that was adopted as evidence among the reasons in the original judgment and was quoted in recognizing "the fact that constitutes a crime" (criminal fact), so the testimony cited as evidence in the grounds in the original judgment should be directly or indirectly related to "the fact that constitutes a crime" (see Supreme Court Order 95Mo38, Jan. 16, 1997).

According to the records, after rapes in the decision on the judgment subject to a retrial, the victim 1 knew that he was pregnant due to the lack of her birth, and did not have any confirmation as to whether or not her pregnancy was pregnant, the victim 1 purchased and recovered a drug for the purpose of abortion at the nearby pharmacy, and the victim 2 degree of pharmacy was pregnant as a result of the pregnancy test at the aftermath of pregnancy, and as such, the victim 2 degree of pharmacy was considered to have taken a pregnancy test at the aftermath of pregnancy, and as such, the victim 2 degree of pharmacy purchased and taken a drug at the pharmacy, and stated the above facts. Accordingly, it is difficult to see that the above testimony was false, and there is no evidence to recognize otherwise. However, the part of the testimony at the above was proved by the method and place of her abortion, which is false.

However, the false statement proved as above cannot be deemed to be directly or indirectly related to the facts that constitute a crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. in the judgment subject to a retrial, as stated in the above 1.A. (1), (2), and (3). However, since the circumstances after rape are recognized to be a somewhat exaggerated statement about the circumstances after rape, it cannot be said that there exists a ground for commencing a retrial solely based on the above.

B. As to the remainder of the statement

With respect to the part other than the part determined in Article 420 Item A of the victim's statement 1 and 2, there is no evidence to acknowledge that false was proved by a final judgment under Article 420 Item 2 of the Criminal Procedure Act, or that there was evidence substituting the final judgment under Article 422 of the same Act. Moreover, there is no reason for retrial under each subparagraph of Article 420 of the same Act, unlike that the grounds alleged by the applicant for a retrial had already been determined and taken place

3. Conclusion

Thus, the request for retrial of this case shall be dismissed as it is without merit.

Judge Lee Jae-in (Presiding Judge)