The meaning of so-called "when clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act

The so-called "when clear evidence is newly discovered" as provided in Article 420 subparagraph 5 of the Criminal Procedure Act refers to the evidence which was not found in, or could not be submitted even after it was discovered in, the litigation procedures in the finalized original judgment, and where it is objectively superior to that of other evidence in the value of evidence.

Article 420 of the Criminal Procedure Act

On March 21, 1967, 65No. 5196, 64-26, April 27, 1965 (Supreme Court Decision 5226, 420(2)1499, 200) dated April 27, 1965 (Supreme Court Decision 5226, Article 420(19), Decision 4294-33, Dec. 29, 1961 (Supreme Court Decision 5758, Decision 420(10), Decision 20(1498) of the Criminal Procedure Act)

Claimant

Seoul High Court Decision 4294No2351 delivered on October 6, 1961

The request for retrial is dismissed.

The gist of the grounds for the request for retrial by the claimant (defendant) is that Seoul High Court sentenced the defendant to a death penalty on October 6, 1961 due to violation of the National Security Act and special larceny around that time, and the above punishment becomes final and conclusive through appeal. While the defendant was summoned to the North Korean mine labor party at the original time, he was under surveillance and carbon pressure from the North Korean mine authorities as an anti-government witness while he was engaged in a simple swimming line at the original time, he was under surveillance and carbon pressure as an anti-government witness, and he was on the opportunity to remain in the first time. On May 30, 1960 (the third lock time when the first instance court found the defendant guilty), the remaining espionage was released from the south coast of the said vessel, and escaped in the Republic of Korea, and the defendant was found to have no relation to the arrest of the defendant as evidence for reasons other than the arrest of the defendant, and the court below acknowledged that there was no relation to the arrest of the defendant as evidence for reasons other than the arrest of the defendant.

The so-called "when clear evidence is newly discovered" in Article 420 subparagraph 5 of the Criminal Procedure Act refers to evidence which was not discovered in, or could not be submitted even after it was discovered in, the litigation procedures in the finalized original judgment, and it should be objectively superior to that of other evidence in the value of such evidence. If we examine the record of the original judgment sent to a party member, it is clear that the defendant has led to all the facts charged through the first instance court and the original instance court, and there is no assertion of self-denunciation, nor there is no evidence to prove it. Even according to the above records, it is evident that the evidence that the defendant might have known that there was such evidence in the litigation procedures prior to the final judgment, but it is not possible to submit it, or it is impossible to know that there was such evidence, and it is not newly discovered after the final judgment became final, it does not meet the above requirements, and it cannot be viewed that the above ground for retrial cannot be seen as a ground for retrial as provided in Article 420 subparagraph 3 of the Criminal Procedure Act.

Therefore, since the defendant's request for retrial is without merit, it is dismissed in accordance with Article 434 (1) of the above Act. It is so decided as per Disposition.

Judges Limited Jin-jin (Presiding Judge)