[1] Whether the court of final appeal may conduct an examination of evidence (negative in principle), and whether the facts or evidence revealed after the judgment of the court below can be used when attached to the appellate brief (negative in principle)

[2] The meaning of "when new evidence is discovered" in the grounds for retrial under Article 420 subparag. 5 of the Criminal Procedure Act, and the standard for determining whether "clear evidence to acknowledge innocence, etc." constitutes "clear evidence to acknowledge innocence, etc

[3] The case holding that materials submitted by the defendant along with the appellate brief do not constitute grounds for retrial under Article 420 subparag. 5 of the Criminal Procedure Act as grounds for appeal under Article 383 subparag. 3 of the same Act

[1] Articles 383, 384, 388, 390, and 431 of the Criminal Procedure Act / [2] Article 420 subparagraph 5 of the Criminal Procedure Act / [3] Articles 383 subparagraph 3, 384, and 420 subparagraph 5 of the Criminal Procedure Act

[2] Supreme Court Order 99Mo93 dated August 11, 1999 (Gong1999Ha, 2261) Supreme Court en banc Order 2005Mo472 dated July 16, 2009 (Gong2009Ha, 1390)

Defendant

Defendant

Cheongju District Court Decision 2009No26 decided May 20, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. The court below affirmed the judgment of the court of first instance which convicted the defendant on the ground that the adopted evidence can be found guilty of the facts charged in this case. The ground of appeal disputing this point is purporting to mislead the selection of evidence and fact-finding which belong to the exclusive authority of the court below as a fact-finding court, and even if examining the reasoning of the judgment below and the ground of appeal, it does not seem to have any circumstance to deem that it constitutes a violation of the Act and subordinate statutes beyond the bounds of the free evaluation of evidence.

2. The court of final appeal is a follow-up trial based on only the litigation materials up to the original judgment and determines the propriety of the original judgment. Thus, it is not possible to conduct a new examination of evidence, except as otherwise provided in the ex officio examination or other Acts and subordinate statutes, and in the case of evidence and facts revealed after the original judgment, it cannot be used even if they are attached to

Defendant was aware that the records of the case No. 98Da190 were discarded in the grounds of appeal, but the court of final appeal should allow Defendant to inspect and copy the records of the case No. 99Da2272, 2000 Godan2639 (Merger) after the judgment of the court below, and then become aware of the fact that the copies of the records of the case No. 198 Goju District Court 99DaDa2272, 200, Goju District Public Prosecutor’s Office were bound to copy of the records of the case No. 190, Jun. 25, 2009 (Merger). However, the court of final appeal was subject to a disposition of partial rejection of records No. 999Da2272, 200Kadan2639 (Merger) and submit them as evidentiary materials after allowing the Defendant to peruse and copy the records of the case, which were rejected.

However, in light of the above legal principles, the grounds cited by the defendant cannot be examined by the court of final appeal. Thus, the defendant's ground of appeal on this part cannot be accepted.

3. Next, if the defendant's above assertion is a ground for appeal under Article 383 subparagraph 3 of the Criminal Procedure Act and there is a ground for retrial under Article 420 subparagraph 5 of the same Act, the documents attached to the appellate brief, etc. should be examined. The defendant submitted to the back of the appellate brief the copy of the Supreme Court's case contents, the copy of the notification of non-permission (limited) of the copy of the copy of the final decision of June 25, 2009, the Cheongju District Court 99Da2272, 200 Goju District Court 2639, Goju District Court 2639 (Joint), the copy of the statement of February 19, 197, the copy of the confirmation document of Non-Indicted 2 prepared on December 10, 1996, the copy of the authentication document of Non-Indicted 2 prepared by the attorney-at-law in charge of public prosecutor's office, the copy of Non-Indicted 21 and the protocol of July 215, 200.

Article 420 subparag. 5 of the Criminal Procedure Act provides that "when evidence is newly discovered" means any evidence that was not newly discovered in, or could not be submitted even if it was discovered in, the final judgment procedure subject to retrial, and where there was negligence in failing to submit such evidence during the final judgment procedure subject to retrial when the defendant filed a request for retrial, such evidence shall be excluded from "when new evidence is discovered." In addition, when determining whether “clear evidence to acknowledge innocence, etc.” falls under "clear evidence to acknowledge innocence, etc., the court should consider only the newly discovered evidence independently and separately, and determine whether to commence retrial based on the value of such evidence, and should consider the newly discovered evidence closely and inconsistent with the newly discovered evidence among the evidence based on fact-finding. If it is highly probable to maintain the judgment beyond the level of legitimacy of the final judgment subject to retrial, such new evidence constitutes "705 U.S. 200” (see, e.g., Supreme Court en banc Decision 2005Du72064, Apr. 7, 2006).

In light of the above legal principles, most of the above documents were prepared prior to the pronouncement of the judgment of the court below, and they fall under evidence either submitted or could have been submitted by the defendant in the litigation procedures of the court below, and the whole of them is merely a material on administrative disposition that is not directly related to the fact of the facts charged of this case, and a material on the statement, etc. used or made in the existing litigation between the defendant and the non-indicted 1 and 2. Thus, it cannot be evaluated that the materials submitted by the defendant constituted “clear evidence to acknowledge innocence, etc.

Ultimately, there is no ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act as the ground for appeal. Thus, there is no ground for appeal by the defendant who was examined as above.

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

Justices Cha Han-sung (Presiding Justice)