Whether the grounds for retrial under the Civil Procedure Act can be applied mutatis mutandis to a retrial in criminal proceedings

A new trial in criminal procedure is a system that intends to correct errors in mistake of facts against a final judgment of conviction and relieves a defendant disadvantaged thereby, and the grounds for requesting a new trial are stipulated in each subparagraph of Article 420 of the Criminal Procedure Act. Furthermore, a request for a new trial against a final judgment dismissing a final appeal is allowed only when there are grounds prescribed in subparagraphs 1, 2, and 7 of the same Article in the final judgment itself. Thus, the grounds for a new trial under the Civil Procedure Act that differs from the purpose and nature of the system cannot be applied mutatis mutandis.

Articles 420 and 421 of the Criminal Procedure Act

Supreme Court Order 86Hun-Ba1 dated May 14, 1986 dated January 20, 1984; Order 87 Jindo4 dated May 27, 1987; Order 90 Jindo1 dated December 6, 1990

A Claimant

Attorney B

Supreme Court Decision 93Do2557 delivered on November 23, 1993

The request for retrial is dismissed.

According to the records, the request for retrial of this case is against the Supreme Court Decision 93Do2557 delivered on November 23, 1993, which dismissed the claimant's appeal, and the reason for the request for retrial is clear that it constitutes a ground for retrial by applying Article 422 (1) 1 of the Civil Procedure Act mutatis mutandis as it constitutes a case where the judgment of dismissal of this case did not constitute a judgment court under the law by changing the previous opinion concerning prohibition of disadvantageous alteration without resorting to the unanimous decision.

However, a new trial in criminal procedure is a system that attempts to correct errors in mistake of facts against a final judgment of conviction and relieves the defendant at a disadvantage caused by such system. Furthermore, a request for a new trial against a final judgment dismissing a final appeal is allowed only when there are any grounds provided in Article 420 of the Criminal Procedure Act (Article 421(1) of the same Act), and the grounds for a new trial under the Civil Procedure Act that differs from the purpose and nature of the system cannot be applied mutatis mutandis.

Therefore, the request for retrial of this case, which is obviously not based on the grounds stipulated in Article 421 (1) of the Criminal Procedure Act, shall be deemed to constitute a case in violation of the legal method. Therefore, it shall be dismissed in accordance with Article 433 of the same Act, and it shall be decided

Justices Kim Jong-sik (Presiding Justice)