In a case where the statute of limitations has already expired even though Article 420 subparagraph 7 of the Criminal Procedure Act was committed, whether it constitutes “when it is impossible to obtain such final judgment” as provided in Article 422 of the Criminal Procedure Act (affirmative)

Articles 420 subparag. 7 and 422 of the Criminal Procedure Act

Supreme Court en banc Order 2008Jado11 Decided October 29, 2010 (Gong2011Sang, 63)

Defendant 1 and six others

Defendant 1 and six others

Prosecutor

Gwangju High Court Order 2014Reno4 dated February 16, 2017

All reappeals are dismissed.

The grounds of reappeal are examined.

1. Article 420 Subparag. 7 of the Criminal Procedure Act provides that “When it is proved by a final judgment that a crime relating to duties is committed by a judge who was involved in the original judgment, the judgment prior to the trial, or the investigation based on the judgment, or by a public prosecutor or judicial police officer who was involved in the institution of a public prosecution or the investigation based on which the public prosecution was based,” the grounds for retrial are “when it is proved by a final judgment” under Article 422 of the Criminal Procedure Act. Article 422 of the same Act provides, “If it is impossible to obtain a final judgment in the event

Article 420 subparag. 7 of the Criminal Procedure Act provides that "where the statute of limitations has already expired even though the crime concerning duties has been committed, it constitutes "where it is impossible to obtain such final judgment" under Article 422 of the Criminal Procedure Act (see, e.g., Supreme Court en banc Order 2008 Jaedo11, Oct. 29, 2010).

2. According to the record, the following facts are revealed.

A. On March 21, 1973, a police officer, belonging to the information department of the police station in Jeonnam-do (hereinafter “information department”), drafted “the arrest report of persons engaged in the operation of the leaflet” on March 21, 1973, and details as follows.

(1) On December 10, 1972, Defendant 1 was arrested and investigated on March 21, 1973 at the front road of the △△△△△△△△△, and Defendant 1 led to the confession of the crime.

(2) Defendant 1 and Defendant 2 secure their personal service and investigate their hinterlands and system, and, if they are found to have a truth, they intend to be detained and investigated in violation of the National Security Act.

B. There is no content that the above report was accompanied by Defendant 1 and Defendant 2 to an investigative agency according to his voluntary will, or that Defendant 1 and Defendant 2 returned to the investigative agency after being investigated.

C. Defendant 1 and Defendant 2 were issued on March 29, 1973 and executed on March 30, 1973.

3. Comprehensively taking account of these facts, Defendant 1 and Defendant 2 should be deemed to have been investigated in a state where they were illegally arrested and detained from March 21, 1973 when a warrant of detention was executed from March 21, 1973 to March 30, 1973 when the arrest warrant was executed. Such police officer’s act constitutes the crime of abusing authority, arresting or detained a person by abusing his authority, and constitutes the crime of abusing authority, or of abusing authority under Article 124 of the Criminal Act. The statutory punishment of the above crime constitutes imprisonment with prison labor for not more than seven years and suspension of qualification for not more than ten years, and a judicial police officer had been arrested of the remaining Defendants under Article 249(1)4 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007) and Article 3 of the Addenda to the Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007).

Therefore, the instant case constitutes “when it is impossible to obtain a final judgment” under Article 422 of the Criminal Procedure Act, where a judicial police officer, who participated in the investigation based on which the public prosecution was based, could not receive a conviction even if the offense was committed, and constitutes “when it is impossible to obtain the final judgment” under Article 422 of the Criminal Procedure Act, and there are grounds for retrial under Article 4

Although the reasoning of the order of the court below is inappropriate, the conclusion accepting the request for retrial of this case is justifiable, and the judgment below did not err by violating the Constitution, Acts, orders, or rules that affected the trial.

4. The reappeal is all dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)