The appeal is dismissed.

The grounds of appeal are examined.

Article 383 subparag. 3 of the Criminal Procedure Act provides that "when a ground for a retrial exists" may be the ground for appeal against the lower judgment. Article 420 subparag. 5 of the Criminal Procedure Act provides that "when clear evidence to acknowledge a crime less than the crime recognized by the lower court is newly discovered with respect to a person who has been pronounced guilty, not guilty or acquittal, or a person who has been sentenced to a punishment, exempted from punishment or acquittal, or a person who has been sentenced to a punishment, is newly discovered."

Here, “when clear evidence is newly discovered” means that no evidence has been, or was found, in the litigation procedure in the finalized original judgment.

Even if the evidence could not be submitted, the value of the evidence is objectively superior to logical and empirical rules, rather than the evidence that the final judgment is based on the fact-finding data.

The grounds of appeal by the Defendant cannot be seen as “when clear evidence is newly discovered” which may serve as the grounds of retrial (see, e.g., Supreme Court Order 2004Mo428, Jan. 4, 2005). Thus, the grounds of appeal by the lower court to the effect that there are grounds for a request for retrial under Article 420 subparag. 5 of the Criminal Procedure Act cannot be accepted.

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