Whether the full bench constitutes grounds for challenge of judges because it did not adopt a party's motion for examination of evidence or did not decide on an application for adjudication within the period of Article 262 of the Criminal Procedure Act (negative)

Article 18 subparagraph 2 of the Criminal Procedure Act provides that "when there is a possibility that a trial will be held in an unfair manner" means an ordinary person's judgment, where there are objective circumstances deemed reasonable to have the suspicion that a trial will be conducted in an unfair manner in relation to a judge or a case. Therefore, there is no objective circumstance that the full bench did not adopt a party's application for examination of evidence or did not make a decision on an application for adjudication within the period stipulated in Article 262 of the same Act. Thus, there is no objective circumstance that it is difficult to expect a fair trial.

Articles 18, 262, and 295 of the Criminal Procedure Act

Supreme Court Order 87Du10 dated October 21, 1987 (Gong1987, 1802)

Re-appellant

Seoul High Court Order 90 seconds69 dated July 5, 1990

The reappeal is dismissed.

The grounds of reappeal are examined.

Article 18 subparagraph 2 of the Criminal Procedure Act does not refer to the time when there is a subjective reason that the parties might be unfair judgment, but it means the time when there is an objective reason that it is reasonable to recognize that the ordinary person would make unfair judgment in relation to the case as an unfair judgment (see, e.g., Supreme Court Order 87Du10, Oct. 21, 1987). Thus, the court below's decision that even if the court below did not adopt a party's application for examination of evidence in the same purport, it is justifiable to find that there is an objective reason that it is difficult to expect the fairness of the trial only due to such reason.

In addition, because the court did not make a decision on the application for adjudication within the period stipulated in Article 262 of the Criminal Procedure Act, it can not be said that the court might immediately render an unfair judgment.

Therefore, the decision of the court below that dismissed the judge's motion for challenge of this case is justified and all arguments are groundless.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)