The request for a retrial which is unlawful for a judgment dismissing an appeal is unlawful.

According to Article 421(1) of the Criminal Procedure Act, a request for retrial may be made only when there are grounds provided for in Article 420 subparag. 1, 2, and 7 of the same Act with respect to a dismissal judgment of appeal or final appeal. Thus, if the ground for request for retrial is just the purport that the dismissal judgment of appeal is unfair, and if it does not contain the above grounds, it violates the legal method.

Articles 421(1) and 433 of the Criminal Procedure Act

Defendant

Defendant

Supreme Court Decision 83Do756 Decided April 25, 1983

The request for retrial is dismissed.

According to Article 421(1) of the Criminal Procedure Act, a request for retrial may be made only when there are grounds provided for in subparagraphs 1, 2, and 7 of Article 420 of the same Act with respect to a dismissal judgment of appeal or final appeal. Thus, a request for retrial, not for dismissal judgment of appeal or final appeal, should be made on the ground that there are such grounds. According to the records, the request for retrial of this case is against Supreme Court Decision 83Do756 Decided May 24, 1983. The reason for the request for retrial is that the first instance judgment maintained by the appellate court, which recognized a crime of special larceny as a criminal fact by the defendant, was unfair since it was dismissed due to a mistake of facts against the rules of evidence, even though the appellate court rejected the defendant's appeal, it is just because it did not contain any ground provided for in Article 421(1) of the Criminal Procedure Act, and thus constitutes a request for retrial of this case in the end.

Therefore, the request for retrial is dismissed in accordance with Article 433 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Il-young (Presiding Justice)