[1] In relation to “when evidence is newly discovered” as a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act, whether the evidence should be newly established for not only the court but also the defendant who requested a retrial (affirmative)

[2] The scope of existing evidence to be assessed together in determining whether it constitutes “clear evidence to acknowledge innocence, etc.” under Article 420 subparag. 5 of the Criminal Procedure Act

[3] The case affirming the judgment of the court below on the ground that the Re-Appellant's ground for retrial did not fall under Article 420 subparagraph 5 of the Criminal Procedure Act, although the court below erred in the misapprehension of the deliberation or decision as to the requirements for newness and apparentness of evidence, the above evidence does not constitute "clear evidence to acknowledge innocence" under Article 420 subparagraph 5 of the Criminal Procedure Act

[1] [Majority Opinion] The term “when evidence is newly discovered” to acknowledge innocence, etc. under Article 420 subparag. 5 of the Criminal Procedure Act refers to the time when new evidence was not discovered in, or could not be submitted even if it was discovered in, the final judgment procedure subject to retrial. As to who new evidence was discovered, the above provision does not limit the scope thereof, and thus, the court does not limit the scope thereof. However, inasmuch as retrial is an exceptional emergency relief procedure that reviews the facts established through careful deliberation of facts in the pertinent instance or through appeals, it is deemed that the evidence that the Defendant could have submitted in the final judgment procedure is included in, so that the final judgment could be readily denied according to the time when the evidence was submitted by the Defendant’s choice, thereby impairing the legal stability of criminal trials, and that the Constitution permits a retrial as the fourth instance contrary to the purport of the final judgment of the Supreme Court. Accordingly, where a defendant requests a retrial, if a defendant was negligent in submitting such evidence during the final judgment procedure subject to retrial, the newly discovered evidence is excluded from the foregoing provision.”

[Concurring Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Park Nung-hwan, Justice Kim Nung-hwan, and Justice Jeon Soo-ahn] Article 420 subparag. 5 of the Criminal Procedure Act does not limit the scope of “new evidence” under its language and text. The Majority Opinion, as seen in the Majority Opinion, deeming that the evidence was newly discovered and known at the same time by the court, and that it should be newly discovered by the defendant who requested a retrial, does not properly reflect the purport of the above provision by emphasizing only the legal stability, and interpreting the meaning of new evidence under the above provision. Furthermore, if it is impossible to recognize new evidence as grounds for retrial on the ground that new evidence is denied due to reasons attributable to the Majority Opinion, it would seriously go against the concept of justice. In addition, it does not go against the purport of the Constitution that the court can re-examine only the issue after the judgment became final and conclusive. Therefore, it does not necessarily go against whether the new evidence was discovered by the court that requested a retrial rather than by finding new evidence.

[2] [Majority Opinion] In determining whether a new evidence constitutes “clear evidence to acknowledge innocence, etc.” under Article 420 subparag. 5 of the Criminal Procedure Act, the court shall not independently and separately examine only the newly discovered evidence and determine whether to commence a retrial based on the value of the evidence. It shall be evaluated together with the newly discovered evidence closely and inconsistent with the evidence, among the evidence which the court having rendered the final judgment subject to retrial based on fact-finding. As a result, where it is highly probable to the extent that the final judgment of conviction is not justified beyond the level of suspicion, the new evidence constitutes “clear evidence” under the above provision. If a court examines only the newly discovered evidence independently and separately, and evaluates and determines apparentness, the new evidence is allowed to commence a retrial only if it has evident value to acknowledge innocence, etc., and it is excessively limited to the grounds for retrial. This is because this is contrary to the purport of the retrial system which provides for “when clear evidence to acknowledge innocence, etc., is newly discovered” as one of the grounds for retrial in order to seek substantive truth by examining changes from new evidence.

[Concurring Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Park Si-hwan, and Justice Kim Nung-hwan] In determining whether the “clear evidence to acknowledge innocence, etc.” under Article 420 subparag. 5 of the Criminal Procedure Act constitutes “clear evidence to acknowledge innocence, etc.”, the scope of the existing evidence should not be limited as stated in the Majority Opinion, but should be comprehensively assessed and determined by considering the newly discovered evidence and all the old evidence to be found in the fact-finding. In light of the Majority Opinion’s interpretation that the new evidence to acknowledge innocence, etc. does not need to be considered independently and separately, the new evidence is closely related and inconsistent with the new evidence among the old evidence admitted in the final judgment for fact-finding, and the close relation or inconsistency between the newly discovered evidence and the old evidence admitted in the final judgment can only be determined specifically and individually in each real case. As such, it is reasonable that a court should comprehensively determine whether innocence, etc. constitutes clear evidence to acknowledge innocence, etc., by taking into account the new evidence and the new evidence admitted in each case.

[3] The case affirming the order of the court below on the ground that the result of the fixed examination conducted after the original judgment became final and conclusive that the re-appellant did not constitute a non-legal certificate, and that there was a ground for retrial under Article 420 Item 5 of the Criminal Procedure Act in the original judgment based on the premise that the defendant was a non-legal certificate, the court did not properly examine whether the result of the fixed examination was newly discovered or not, and determined whether the result of the fixed examination was a clear evidence to acknowledge innocence based on the value of evidence only on the result of the fixed examination, although the court below determined that the result of the fixed examination did not constitute a clear evidence to acknowledge innocence, on the ground that the result of the fixed examination did not constitute a non-legal certificate even if the defendant was examined together with the evidence closely related to the result of the fixed examination which was based on the fact-finding in the original judgment, and that the result of the fixed examination

[1] Article 420 subparagraph 5 of the Criminal Procedure Act / [2] Article 420 subparagraph 5 of the Criminal Procedure Act / [3] Article 420 subparagraph 5 of the Criminal Procedure Act

[1] Supreme Court Order 86Mo22 dated Feb. 11, 1987 (Gong1987, 680), Supreme Court Order 95Mo67 dated Nov. 8, 1995 (Gong1996Sang, 107), Supreme Court Order 95Mo38 dated Jan. 16, 1997 (Gong1997Sang, 689), Supreme Court Order 99Mo93 dated Aug. 11, 1999 (Gong199Ha, 2261) / [2] Supreme Court Order 88Mo38 dated Feb. 19, 190 (Gong190, 1091) (Amended by Presidential Decree No. 199050, Nov. 5, 199; Presidential Decree No. 199904, Oct. 19, 199; Presidential Decree No. 17081, Oct. 19, 1999)

Re-appellant

Attorney Compulsory Appearance

Seoul High Court Order 2005Jono12 dated August 19, 2005

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the first ground for reappeal

A. Article 420 Subparag. 5 (hereinafter “instant provision”) of the Criminal Procedure Act provides, one of the grounds for retrial, “When there is a clear evidence to acknowledge a crime more severe than the crime acknowledged by the original judgment against a person who was sentenced to a crime, not guilty or acquittal, or a person who was sentenced to a punishment, is newly discovered” as one of the grounds for retrial. This is also the so-called new ground for retrial whose contents include the appearance of new evidence after the final judgment became final and conclusive, and first, the new evidence is found (newness of evidence) and second, and the newly discovered evidence falls under a clear evidence to acknowledge innocence, etc. (clearness of evidence).

"When evidence is newly discovered" as to the provision of this case refers to the time when evidence was newly discovered or could not be submitted even if it was not discovered or discovered in the final and conclusive litigation procedures subject to retrial. As to who is newness of evidence, the provision of this case does not limit the scope thereof, and thus, the subject of retrial is not limited to the court. However, since it is exceptional emergency relief procedures that review the facts established after careful fact hearing in the pertinent instance or through appeal, it includes evidence that could have been submitted before the final and conclusive judgment, it would undermine the legal stability of criminal trials by easily denying it according to the time when evidence was submitted by the defendant's final and conclusive judgment. Accordingly, if a defendant's request for retrial was negligent in failing to submit such evidence during the final and conclusive litigation procedures, such evidence shall be excluded from the Supreme Court Order 196Mo1698 delivered on June 19, 196, Supreme Court Order 196Mo197 delivered on June 19, 196.

In addition, in determining whether “clear evidence to acknowledge innocence, etc.” exists, the court should not independently and separately examine only the newly discovered evidence and decide whether to commence a retrial based on the value of the evidence, but shall consider the newly discovered evidence and the evidence closely related and inconsistent closely with the fact-finding, among the evidence which the court which rendered the final judgment subject to retrial based on the fact-finding. As a result, if it is highly probable that the final judgment subject to retrial is highly likely to maintain its judgment beyond the level of suspicion of legitimacy, then the new evidence constitutes “clear evidence” under the provision of this case. If a court examines only the newly discovered evidence independently and separately, and evaluates and determines obviousness, a retrial is allowed only if it has an obvious value of evidence to acknowledge innocence, etc., and the grounds for retrial are excessively limited. This is because it contradicts the purport of the retrial system that provides for “when clear evidence to acknowledge innocence, etc., is newly discovered” as one of the grounds for retrial in order to seek substantial truth by examining the newly discovered evidence relations different from that existing evidence.

Supreme Court Order 90Mo50 Decided November 5, 1990; Supreme Court Order 91Mo45 Decided September 10, 1991; Supreme Court Order 99Mo93 Decided August 11, 1999, etc., which held that only the value of newly discovered evidence constitutes “clear evidence to acknowledge innocence” shall be modified to the extent inconsistent with the above legal principles.

B. The court below found the re-appellant (the defendant and the "re-appellant" in this case) guilty of committing a crime on the grounds that the re-appellant (the defendant and the "re-appellant") carried a dangerous object and raped the victim, and held that the Re-Appellant's ground for retrial falling under the provision of this case exists in the judgment subject to retrial on the ground that the result of the fixed examination of the re-appellant, which was conducted after the judgment subject to retrial became final and conclusive, did not constitute a non-affordity, and therefore, the court below determined that the result of the fixed examination cannot be deemed as evidence which could not be submitted in the litigation procedure of the judgment subject to retrial, and that there was no ground for retrial on

Examining the reasoning of the judgment below in light of the above legal principles, the court below should first examine whether the Re-Appellant's evidence not guilty was found in the litigation procedure of the judgment subject to retrial in determining whether the Re-Appellant's evidence not guilty was newly discovered, and then should have determined that if the Re-Appellant's evidence was found to fall under a case where the Re-Appellant was aware of such evidence and did not submit it intentionally or by negligence, it cannot be viewed as a new evidence that constitutes a ground for retrial under the provision of this case. The court below erred in the misapprehension of legal principles as to new evidence under the provision of this case, and failed to fully examine whether the result of the fixed examination was not found in the litigation procedure, and whether the Re-Appellant's intention or negligence was found in the non-appellant's failure to submit it.Second, the court below determined that the evidence was not a fixed evidence that should be considered as a basis for finding facts, which is closely related and closely contradictory to the fixed examination result, and should be evaluated differently from the evidence.

However, the Re-Appellant's evidence, i.e., evidence closely related to the aforementioned fixed examination result of the Re-Appellant's non-self-determination, which is a ground for retrial, refers to the appraisal request report by the head of the National Science Investigation Agency and the investigation report by the chief of the National Science Investigation Agency, among the evidence, which served as the basis for finding a final judgment subject to retrial based on the records of the case subject to retrial. The contents of the above appraisal request report include only a fixed training reaction from the body collected within the victim's body, and the sperm was not detected. In light of the above appraisal request report, the above investigation report is presumed to be non-a fixed training reaction, such as the contents of the above appraisal request report, but without a fixed training reaction, can not be concluded as non-a fixed amount or the preservation process, etc., and thus, the above appraisal request report alone cannot be concluded as non-a fixed amount or non-a fixed amount of evidence, and it cannot be acknowledged that it does not constitute the evidence of this case, even if there is no clear probability that the above facts cannot be found as a high probability.

Therefore, it is justified in the conclusion that the court below's decision that the above inspection result of the re-appellant did not constitute a ground for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act

2. As to the second ground for reappeal

Article 420 Subparag. 7 of the Criminal Procedure Act provides that “When it is proved by a final judgment that a judge, a judge who has participated in the original judgment, the judgment prior to the trial, or an investigation based on the judgment, or a prosecutor or senior judicial police officer who has participated in the institution of a public prosecution or in an investigation based on the indictment has committed an offense in connection with his/her duties,” it shall be deemed that there is a separate final judgment or evidence in lieu of a final judgment under Article 422 of the Criminal Procedure Act regarding the fact that the original judgment was obtained by the said public official’s criminal act (see, e.g., Supreme Court Order 96Mo72, Aug. 29, 1996; Supreme Court Order 2004Mo16, May

According to these legal principles, the court below's order holding that this case does not constitute a ground for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act on the ground that there is no evidence to replace a separate final and conclusive judgment or a final and conclusive judgment under Article 422 of the Criminal Procedure Act with regard to the fact that the final and conclusive judgment subject to retrial was obtained by a criminal act related to the duties of judicial police officers involved in the investigation, is just, and there is no other error in the misapprehension

3. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition.

In relation to the interpretation of the new evidence to acknowledge innocence, etc., which is the grounds for retrial under Article 420 subparag. 5 of the Criminal Procedure Act, there is a separate opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Park Si-hwan, Justice Park Si-hwan, Justice Park Si-hwan, Justice Park Nung-hwan, Justice Jeon Soo-ahn, and Justice on the method of determining whether “where evidence is newly discovered” and “clear evidence to acknowledge innocence, etc.” as well as a separate opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hwan,

4. Concurring Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Park Il-hwan, Justice Kim Nung-hwan, and Justice Jeon Soo-ahn

A. The Majority Opinion argues that evidence to acknowledge innocence, etc. in the grounds for retrial under the provision of this case should be newly discovered not only in the court but also in the defendant who requested a retrial.

However, it is reasonable to view that whether evidence to acknowledge innocence, etc. under the provision of this case constitutes “new discovery” ought to be determined according to whether the court which examines whether to commence a retrial, rather than the defendant requesting a retrial, newly discovered and becomes aware of the commencement of a retrial. The reasons for such determination are as follows.

(1) The grounds for retrial stipulated in the instant provision are unique to criminal litigation. In the case of civil litigation, etc. for which res judicata of a final and conclusive judgment is recognized, the factual relationship and legal relationship are determined based on the evidence submitted up to that time with respect to the grounds that occurred prior to the closing of argument at the trial court (hereinafter “the timely scope of res judicata”). Thus, in principle, it is not permissible to submit evidence that the parties had existed prior to that time and did not submit, and then dispute the factual relationship and the legal relationship (hereinafter “effective effect or blocking effect”). However, the grounds for retrial stipulated in the instant provision is limited to the impeachment of the newly established fact-finding after the final and conclusive judgment on the previous lawsuit, regardless of whether there exists any new evidence that was not submitted in the lawsuit even after the final and conclusive judgment on the previous lawsuit, regardless of whether it had existed prior to that final and conclusive judgment. In other words, unlike civil litigation, it is difficult to acknowledge that the parties are liable to submit all evidence necessary for fact-finding even before the final and conclusive judgment on the basis of the parties’ principle.

In criminal proceedings, there is no need to promote legal stability by recognizing the substantive final binding power in accordance with the final and conclusive judgment. However, in criminal proceedings where punishment is imposed, such as deprivation of human life or restriction on body, even if it is found that there is an obvious mistake of facts in the trial that found the defendant guilty, if the opportunity to correct the facts is obstructed only on the grounds of the substantive final and conclusive power in accordance with the final and conclusive judgment, it would result in a violation of human rights against the defendant. The ultimate goal of criminal proceedings is to protect the human rights of the defendant as much as possible and to find substantial truth. As such, the necessity to relieve a person who has been punished without doubt is no choice but to demand the relief from a completely different point from the case of civil proceedings, and the request for legal stability should not be concession within such scope. The grounds for retrial prescribed in the provisions of this case are, above all, most of all, most of them must be sufficiently reflected in the interpretation of the provisions.

(2) The majority opinion maintains the view of the previous Supreme Court precedents that the evidence to acknowledge innocence, etc. as stipulated in the provision of this case should be limited to the evidence newly discovered and known to the defendant who requested a retrial as well as the court.

According to the majority opinion, evidence provided as grounds for retrial under the provision of this case is insufficient only to the extent that the evidence newly discovered and known by the court is insufficient, and at the same time, the defendant who requested a retrial is not found in the final and conclusive judgment procedure subject to retrial, and should be evidence newly discovered and known thereafter. Thus, even if the court that rendered the judgment subject to retrial becomes aware only after the final and conclusive judgment becomes final and conclusive, evidence that the defendant was unable to submit even if it was discovered in the previous litigation procedure, is excluded from the newly discovered evidence referred to in this case.

However, as the Majority Opinion also assumes, the provision of this case does not limit the scope of “when evidence is newly discovered” to mean “when evidence is newly discovered” under its language and text. Inasmuch as the court becomes aware of the newly discovered evidence at the same time as the Majority Opinion, deeming that the Defendant requesting a retrial ought to be newly discovered at the same time constitutes an interpretation that clearly unfavorable to the Defendant under the Criminal Procedure Act, it does not mean to without delay limit the grounds for retrial to the disadvantage of the Defendant. Furthermore, according to the Concurrence with the Majority Opinion as seen earlier, if new evidence is acknowledged solely on the ground that a court newly discovered witness’s statements or statements, etc., which change before and after a final judgment or after a final judgment, are newly discovered, the retrial would be contrary to the purport or basic spirit of Articles 420 subparag. 1 and 2 of the Criminal Procedure Act, or all of the grounds for retrial under Articles 420 subparag. 1 and 2 of the Criminal Procedure Act should be deemed to have different grounds for retrial from that of the final judgment, and thus, the so-called “new or altered evidence” of the final judgment ought to be interpreted as evidence for retrial.

Rather, requesting a retrial as a ground for retrial under the provision of this case is permitted only for the benefit of the person who was sentenced to a final judgment of conviction, and the content of the request for retrial is seeking a review of fact-finding that found the defendant guilty, and such fact-finding is based on the contents of evidence submitted up to that time by the court that rendered the judgment subject to retrial, the issue of whether “new evidence” as referred to in the provision of this case should be determined on the basis of whether it is different from the contents of evidence that the court recognized as the basis in the final judgment procedure subject to retrial while conducting a fact-finding in the final judgment procedure subject to retrial.

(3) The majority opinion argues that the evidence referred to in the above provision should be limited to evidence which was not produced by the defendant even if the defendant was not discovered or discovered, despite the absence of explicit grounds in the text of the above provision, and that if it is deemed that the evidence which the defendant could have submitted in the litigation before the final and conclusive judgment is included, the final and conclusive judgment can be readily denied according to the time when the defendant submitted evidence so chosen, thereby causing a risk of undermining the legal stability of the criminal trial.

However, as seen in the above (1) from the point of view of legal stability, the final and conclusive force of the judgment cannot be denied, but the recognition of the grounds for retrial as stipulated in the provisions of this case is derived from the purport that the defendant's fundamental goal in the criminal trial is to realize the ultimate goal of protecting the human rights of the defendant and that the request for legal stability can only be made within the scope of that purpose by opening a way for the impeachment of the recognition of facts in the criminal trial even after the final and conclusive judgment was rendered. Therefore, it is thought that the interpretation of limiting the meaning of new evidence as stipulated in the provisions of this case by emphasizing only the aspect of legal stability does not reflect the purpose

Furthermore, it is understood that, in general, limiting the temporal scope of res judicata of a final and conclusive judgment to the fact-finding stage and not allowing a new submission of evidentiary materials necessary for fact-finding, and then does not allow the defendant to dispute the facts. It is understood that the responsibility to submit all the evidentiary materials necessary for fact-finding according to the principle of party to a lawsuit is the party who bears the burden of assertion and burden of proof, and thus, the party who failed to fulfill his responsibility must return to the disadvantage. However, in criminal proceedings, the liability to prove the facts charged is limited to the prosecutor, and the defendant is only in the position to submit evidentiary materials necessary for the impeachment of the evidence submitted by the prosecutor, and it does not have the burden of submitting such evidentiary materials to the defendant. Considering the special nature of criminal proceedings in the instant provision, the defendant is able to submit new evidentiary materials even after the final and conclusive judgment, thereby denying the effectiveness of the final and conclusive judgment by allowing the defendant to submit new evidence even after the final and conclusive judgment. Nevertheless, if the defendant interpret it as a new evidence on the ground that there is no obligation to submit new evidence in criminal proceedings, it is inconsistent with the purport of this.

(4) Even though the Majority Opinion excessively limits the “newness of evidence” as stipulated in the provision of this case, it should not be overlooked that any evidence is new and that there may not be new grounds for retrial on the ground that newness is denied due to the reasons attributable to the defendant scheduled by the Majority Opinion, and that it may result in a significant violation of the concept of justice.

For instance, even though the defendant who requested a retrial discovered clear evidence to acknowledge innocence, etc. in the final and conclusive judgment procedure subject to retrial, he/she was unable to submit such evidence as a care, and the court which rendered the final and conclusive judgment was able to investigate such evidence ex officio if he/she paid a more attention to it. In such a case, according to the Majority Opinion, evidence may be denied and thus, the retrial may not commence. However, even in such a case, it is difficult to avoid criticism that the court’s rejection of remedy procedures for the protection of human rights to take responsibility only for the applicant for a retrial while excluding the realization of justice by finding substantial truth, and that the court’s rejection of remedy procedures for the protection of human rights would not be justified.

In addition, there may be many cases where it is clearly revealed that the defendant made a false confession and the judgment became final and conclusive on behalf of the defendant in the actual criminal procedure on behalf of the defendant, such as his/her will, old-age, and rash, etc. In addition, apart from asking for the liability of the crime, such as concealment of the criminal under the Criminal Act, there are evidence that the defendant is clearly innocent, such as the statement to reverse the fact that the defendant made a false confession in the previous criminal procedure after the judgment became final and conclusive or the statement to the effect that the defendant made a confession as his/her criminal act after the judgment became final and conclusive. According to the majority opinion, if such evidence is to be denied on the ground that the defendant was not intentionally submitted in the previous criminal procedure, and if the result of final and conclusive judgment by a false confession is maintained, it goes against substantial justice as it goes against the substantial truth. In addition, the substantial truth should be pursued through a careful and faithful hearing within the scope of the court and appeal as pointed out by the majority opinion, and the legal peace and order formed by the final judgment should be respected within the principle of substantive justice and operation of the Criminal Procedure Act.

(5) As discussed in the Majority Opinion, we do not agree with the fundamental view of the Majority Opinion with regard to the fact that the Constitution should not allow a retrial as the fourth instance contrary to the purport of the final provision of the Supreme Court, as seen in the Majority Opinion, due to the grounds for retrial under the provision of this case.

However, the provision of this case provides that "when clear evidence to acknowledge innocence, etc. is newly discovered, the grounds for retrial are "when only the fact-finding in the final judgment becomes the subject of the trial, and this is still a dispute in the area of the fact-finding court, which is the final judgment, the Supreme Court may serve as a court-finding in principle on the premise of facts established (Article 383 subparagraph 3 of the Criminal Procedure Act provides that "when there is any ground for request for retrial" can be referred to as the grounds for final appeal. However, this provision provides that "when there is a ground for request for retrial," which can be referred to as the grounds for final appeal for reasons such as that it would go against the economy of the lawsuit, and it is only a case where the Supreme Court additionally performs the function of the court-finding in lieu of the function of the court-finding court for convenience within such limits. Therefore, this cannot be included in the inherent function of the Supreme Court, which is the court of final appeal). Accordingly, it does not go against the purport of the Constitution that the court shall decide only new evidence after the final judgment becomes final.

However, even if the purport of the Majority Opinion is to say that there is a concern for abuse of the retrial system as a result of the practical function of the retrial procedure after the Supreme Court’s fourth instance due to the grounds for retrial under the provision of this case, it would not be unnecessary. Even if a court has taken the position that whether new evidence is recognized or not in the previous litigation procedure, it can be said that there is no ground for retrial as prescribed under the provision of this case, and further, it can be a ground for retrial only if the evidence satisfies the requirements for obviousness of evidence. Thus, if there is no new evidence, it would sufficiently prevent the expansion of the grounds for retrial by examining the obviousness of evidence, unless it can be determined to the extent that it cannot maintain the final judgment of conviction, and even if a witness, etc. testimony in the litigation procedure of the judgment subject to retrial as stated in the Concurrence with the Majority Opinion, even if new evidence is admitted, it is highly probable to the extent that it can no longer maintain the final judgment of conviction that would constitute a new ground for retrial, as it does not constitute a ground for retrial under the provision of this case.

B. According to these legal principles, the Re-Appellant's result of the fixed examination of himself, which is the ground for retrial under the provision of this case, shall be deemed to be new to the court, since the Re-Appellant's result of the fixed examination of himself, which is one of the grounds for retrial under the provision of this case, is discovered after the judgment for retrial became final and conclusive, and thus, it constitutes "when new evidence is discovered" under the provision of this case, and the court below's order that determined that the result of the fixed examination cannot be deemed to be evidence which could not be submitted in the litigation

C. However, I agree with the majority opinion that it is difficult to see that the result of the above examination is an obvious evidence to acknowledge innocence, and therefore, I agree with the majority opinion that the reappeal of this case should be dismissed. However, I agree with the majority opinion as to the newness of evidence, and therefore I agree with the separate opinion.

5. Concurring Opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Park Il-hwan, and Justice Kim Nung-hwan regarding the method of determining “clear evidence”

A. The Majority Opinion argues that the Supreme Court’s previous Supreme Court precedents should be determined on the basis of only the value of newly discovered evidence when determining whether “clear evidence to acknowledge innocence, etc.” should be determined with the value of evidence together with the old evidence used as the basis of fact-finding by the court which rendered the final and conclusive judgment subject to retrial. However, among them, those closely related and inconsistent with newly discovered evidence should be considered together.

However, it is reasonable to comprehensively evaluate and determine the scope of evaluation of old evidence to be considered when determining whether it constitutes “clear evidence to acknowledge innocence, etc.” rather than as the majority opinion, considering the newly discovered evidence and all old evidence employed in the fact-finding. The reasons to be considered are as follows.

(1) First of all, if determining whether a new evidence constitutes “clear evidence” to acknowledge innocence, etc. as stated in the Majority Opinion, it is interpreted that only the new evidence should not be considered independently and separately. As long as there is a new evidence to acknowledge innocence, etc. as stated in the provision of this case, it is difficult to view that a new evidence to acknowledge innocence, etc. is re-examineing the fact-finding of a final and conclusive judgment, as long as it is difficult to view that there is a new evidence to acknowledge innocence, etc. as stated in the provision of this case, the scope thereof is not limited because

(2) Furthermore, the Majority Opinion does not present any criteria for assessing the newly discovered evidence and the old evidence that is subject to a final judgment based on the fact-finding only closely related and contradictory among those employed in the fact-finding. In addition, in terms of the newly discovered evidence, the old evidence employed in the fact-finding of the final judgment subject to a final judgment may not only be closely related to the new evidence and the case subject to a final judgment, but also be contradictory to supporting different results. As such, it seems that the close relation or inconsistency between the newly discovered evidence and the old evidence employed in the final judgment would be difficult to be determined specifically and individually in each actual case. However, it is reasonable that the court should make a comprehensive determination by comprehensively taking into account the newly established evidence and the evidence admitted in the final judgment in accordance with each case.

B. According to these legal principles, the court below erred in holding that it is not clear to acknowledge innocence based on the above fixed examination result and old evidence employed by the judgment subject to a retrial without comprehensively evaluating the above fixed examination result and the above fixed examination result. However, as seen in the majority opinion, the fixed examination result submitted by the re-appellant is merely a material that the re-appellant is not an unqualified one, so long as it cannot be readily concluded that the defendant is an unqualified one, the value of particular evidence cannot be acknowledged, as long as the defendant's report on the appraisal request by the head of the National Science Investigation Institute or the investigation report by the chief of the National Institute of Science and Investigation and the prosecutor's office in the old evidence cannot be viewed as an unqualified one, and in other words, the fingerprints taken from the victim's residential rail, a senior offender's intrusion, coincide with the re-appellant's fingerprints and the like type used in the crime at the residence of the re-appellant, this case cannot be seen as a case where these evidence, etc. are evaluated as a whole together with the fixed examination result of the above fixed examination result, and it cannot be deemed as highly probable.

C. As above, I agree with the majority opinion that the reappeal of this case should be dismissed, but I agree with the majority opinion, and I agree with the dissenting opinion.

6. Concurrence with the Majority by Justice Yang Sung-tae, Justice Lee Hong-hoon, and Justice Ahn Dai-hee

A. As to “newness of evidence” in the instant provision

(1) In the past, the Supreme Court stated that the evidence constituting grounds for retrial under the provision of this case should be newly established not only in the court but also in the applicant for retrial. However, the case where a defendant who requested a retrial was negligent in failing to submit it, was excluded from the case where evidence is newly discovered, and the majority opinion maintained this view. As to this, the separate opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Park Si-hwan, Justice Park Si-hwan, Justice Kim Nung-hwan, and Justice Jeon Soo-ahn (hereinafter “ separate opinion”) should be decided not by the defendant requesting a retrial but by whether the court which reviewed the commencement of retrial becomes aware of new discovery.

However, for example, in cases where a witness, etc. who testified at the time of a final and conclusive judgment reverses his previous statement or position, other than the cases cited by the Concurring Opinion, it may be the opinion that the newness should be recognized by deeming the same to be newly discovered in the form of a court. However, as seen below, it is unreasonable as follows, by determining whether the evidence constitutes grounds for retrial under the provision of this case solely based on the clearness requirement of evidence, the newness requirement of evidence should be determined, thereby excluding the provisions of the Criminal Procedure Act or harming the foundation of the court system in relation to the grounds for appeal that “when there is any reason for retrial” under Article 383 subparag. 3 of the Criminal Procedure Act.

(2) We would like to point out that it is obviously contrary to the current Criminal Procedure Act before discussing whether it conforms to the guarantee of human rights of the defendant in a case where the defendant reverses his confession or the witness who testified at the time of the final and conclusive judgment, etc. reverses his previous statement or position.

Article 420 of the Criminal Procedure Act lists the grounds for retrial on a limited basis, and the provisions of subparagraphs 1 and 2 of the same Article, unlike the provisions of this case, are deemed to be grounds for retrial only when documents and evidence established as evidence in the original judgment are forged or altered, or testimony, appraisal, etc. are proved by a final judgment.

In light of the purport of Article 420 of the Criminal Procedure Act and Articles 1 and 20 thereof, if, even if a witness’s statement or statement, etc. containing a statement that has changed before and after a final and conclusive judgment were newly presented as evidence, it is deemed that it constitutes grounds for retrial as stipulated in the provisions of this case by deeming it as new evidence in a formal aspect, this would be contrary to the basic spirit of the above provisions of the Criminal Procedure Act, provided that exceptional review is allowed only in cases where the previous evidence is revealed to be false by a final and conclusive judgment. In addition, if such statement, etc. were merely changed to the contents or form of evidence different from that of the evidence without any substantial difference compared with the transfer, it is reasonable to view that it is identical with the existing statement, etc. which was discovered at the time of the final and conclusive

Therefore, it would be difficult to avoid criticism that the newness of evidence is recognized only formally and the causes for new retrial are unfairly expanded differently from the purpose of the Criminal Procedure Act by admitting the newness of evidence on the grounds that the statement which has been reversed or altered without being proved by the final judgment is new to the court.

In addition, considering the fact that the review is an exceptional emergency remedy procedure that reviews the facts established through careful deliberation of facts in the general criminal trial procedure, the current court currently employs it as evidence of conviction after a strict examination of human evidence, and the reality of Korean criminal justice in which there are many cases where the statements, etc. of the accused and the witness are changed, recognizing the reversed statement as grounds for retrial is more serious than harming the guarantee of the human rights of the accused and its duties by requesting unnecessary hearings to the court rather than undermining the guarantee of the human rights of the accused, and in some cases, it is clear that it would seriously undermine the legal stability in the criminal justice system by exposing the witness who testified in the course of a final and conclusive judgment, including the victim witness, and

The Concurring Opinion argues that, in exceptional cases for the defendant who has detained him/her in the form of a false confession, a new confession as to the reversal of his/her confession is recognized. However, in order to recognize his/her confession as false, there should be new evidence to prove the falsity of his/her confession, so the defendant may request a retrial sufficiently based on such new evidence. In other words, since the mere reversal of his/her confession cannot be presented in cases where the confession is recognized as a false confession immediately without delay, the view that the defendant who has detained him/her may not remedy for the waiver of his/her confession if he/she denies it only by the reversal of his/her confession.

In addition, the Concurring Opinion explains that even if newness is recognized in the reversal of a confession, the retrial shall not be accepted without permission by the examination of the clearness requirement. However, if newness is recognized as stated in the ruling above, the court should also evaluate and determine the evidence closely related to and inconsistent with the new evidence among the evidence admitted in the final judgment in fact-finding and examine whether it is obvious to recognize innocence, etc.

In the end, if a confession is reversed, the court which received the request for a retrial should decide whether to constitute grounds for retrial after examining all the evidence attached to the record. As seen earlier, it may cause waste of the procedure by demanding a court’s full review as to the reversal of a simple confession, i.e., the reversal of a confession without any supporting evidence, and demanding a court’s review as to the reversal of a confession without any supporting evidence. Furthermore, this would lead to a significant instability of the criminal judicial order by inducing the reversal of a confession by inducing the defendant who is peacefully reducing the execution of

(3) Article 383 subparag. 4 of the Criminal Procedure Act provides that “When there is a violation of the Constitution, Act, order or rule that affected the judgment (Article 383 subparag. 1 of the Criminal Procedure Act)” or “a case on which imprisonment, with or without prison labor, for an indefinite term or for not less than ten years, with or without prison labor, with or without prison labor, with or without prison labor, for a significant fact has an effect on the judgment, or when there is a substantial reason to recognize that the amount of punishment has been extremely unfair (Article 383 subparag. 4 of the Criminal Procedure Act).” This means that the probative value of evidence in a criminal procedure belongs to the judge’s free judgment (Article 308 of the Criminal Procedure Act), and the issue of fact-finding should be determined through sufficient deliberation at the first instance court and the appellate court, and the scope of the review of the court of final appeal shall be limited to the scope of violation of law.

However, as stated in the Concurring Opinion, evidence to acknowledge innocence, etc. in the grounds for retrial under the provision of this case is new against the court, and the appellant newly presented the evidence that could have been submitted to the appellate court sufficiently, in particular, the previous testimony or statement to the effect that the previous testimony or statement was modified, thereby affirming newness, the retrial court has to make a new decision on the value of the previous evidence related to the evidence in order to examine the obviousness, and it is contrary to the economy of litigation, and if the imprisonment, etc. for not less than 10 years has not been pronounced, it is contrary to the basic spirit of the Criminal Procedure Act, which provides that the determination on the value of evidence shall be entrusted to the free evaluation by the court of first instance and the appellate court, and it shall be limited to the violation of law at the subsequent stage.

Meanwhile, Article 383 Subparag. 3 of the Criminal Procedure Act provides that “when there is a ground for request for retrial” as one of the grounds for appeal. A final judgment becomes final and conclusive even if there was a ground for request for retrial prior to the final and conclusive judgment, requiring a request for retrial would not only go against the economy of litigation, but also go against the concept of justice. However, as stated in the Concurring Opinion, if the petitioner newly submitted evidence that could have been submitted to the appellate court sufficiently before the final and conclusive judgment while filing a final appeal, and thereby, newness is affirmed, the Supreme Court has determined the value of evidence of the previous evidence in order to examine whether it is apparent, as in the case of the appellate court, so it goes against the basic spirit of the Criminal Procedure Act, which the Supreme Court allowed the Supreme Court to review only the violation of the law. In addition, if the Supreme Court re-determines the value of evidence of the previous evidence by asserting it as a new evidence even if it is entirely without value as evidence, it would be extremely unfair since it merely objects to fact-finding or materials as grounds for appeal.

Therefore, in light of the purport of Article 383 subparag. 3 of the Criminal Procedure Act and the policy ideology of the criminal justice, which is the efficient distribution of judicial resources through strengthening the functions of the first and second trials as fact-finding courts, it is reasonable to allow the substantial function of the requirements for new evidence, separate from the examination of the requirements for the obviousness of evidence, in which the evaluation of fact-finding is inevitable in the grounds for retrial under the provisions of this case. In such a sense, it is reasonable to interpret that the defendant requesting a retrial satisfies the requirements for new evidence. Thus, the purport of the ground for appeal which is merely an error of the fact-finding of the fact-finding court by mediating the grounds for retrial should be considered valid.

(4) In addition, the Concurring Opinion criticizes that if newness of evidence is determined based on both the court and the defendant as the majority opinion, the human rights protection has been neglected by excessively restricting the opportunity to discover substantive truth through retrial.

The proposition that “no one person shall be punished even if 10 criminal offenders are placed” is one of the fundamental points of democratic criminal procedures, namely, discovery of substantial truth and protection of human rights. It does not require a multilateral opinion that our criminal procedure exists on the basis. Such ideology is to be shared by all the persons who operate the criminal justice procedure, and cannot be a full object of some persons. The Majority does not deviate from such ideology, but intends to find a harmonious point of view with the legal stability, which is an essential element of the judicial procedure, by the improper review procedure, to the extent that the principle does not infringe upon, to the extent that the essential effect of the judgment, which is an essential element of the judicial procedure, is damaged or that the judicial order is disturbed.

Article 420 subparag. 1 through 4, 6, and 7 of the Criminal Procedure Act provides that a case which becomes the subject of a trial upon the final judgment becomes final and conclusive and becomes final and conclusive. A new trial is an exception and emergency relief procedure which reverses the validity of the final and conclusive judgment. As such, as far as the nature of the case is extremely exceptional and subsequent to a new trial, the retrial procedure cannot be maintained any longer after the judgment becomes final and conclusive (Article 420 subparag. 1 through 4, 6, and 7 of the Criminal Procedure Act). However, the Criminal Procedure Act provides that a new evidence to acknowledge innocence, etc. as a ground for retrial different from that of the above grounds for retrial is established, and the facts established after the final and conclusive judgment cannot be asserted in principle, but if new evidence appears to have any serious error to be contrary to the ideology of the discovery of substantial truth and the guarantee of human rights as a result of the new trial, it is understood that the above provision specifically provides for the grounds for retrial as a ground for retrial, which is the subject of new and conclusive evidence.

Our criminal procedure is, in principle, a party principle, and the examination of evidence is not led by authority. Materials that the prosecutor or the defendant does not submit or point out to the court are hard to understand and evidence. If the court decides only on the basis of whether the evidence, which is a ground for retrial, was newly discovered, the evidence that the defendant had already known, falls under all of the materials that the defendant did not submit to the court during the trial process, and the meaning of "new" is determined by whether the defendant submitted it to the previous court, and it is not consistent with the language and text, but it is the result that the requirements for newness are mitigated.

In addition, the burden of proof of guilt in criminal procedure is the public prosecutor and the defendant is in the position to defend them. Although the defendant defends himself/herself against the facts charged is basically the right of the defendant, it cannot be denied that the defendant has a duty to cooperate in the trial procedure to discover substantial truth as long as he/she is legally granted a large number of powers to guarantee his/her right of defense. In this regard, the defendant has already been aware of, and even if he/she was able to submit it, if he/she did not submit it with negligence, it constitutes a case where he/she failed to perform his/her duty. In the case of an appeal, even if the period of appeal exceeds the period of appeal between the defendant's ignorance and the defendant's failure to do so, it cannot be viewed that the attitude of the previous precedents that did not recognize newness is unfair (Article 345 of the Criminal Procedure Act).

The Concurring Opinion concerns that if newness is restricted as in the Majority Opinion, the guarantee of human rights by the discovery of substantive truth would be insufficient. However, it is difficult to expect that a defendant knows the existence of a critical evidence to be recognized as innocence or fails to submit it without any disability even if he/she is able to do so, and in such a case, he/she can be relieved of remedy on the ground that there are almost all disability. As seen earlier, the Majority Opinion considers that there are concerns about the separate opinion as seen earlier. The Majority Opinion considers materials that the defendant did not submit in the court to be “new” as evidence, and further prevents damage to the justice by a very valuable procedure that should undergo the process of determining the value of evidence by the court record. Even once the trial is held, it is important to faithfully and thoroughly implement the ideology of the protection of human rights within the relevant procedure, and it is not good that the new trial should be repeated and repeated.

(5) As such, the Concurring Opinion with respect to newness is an interpretation close to the creation of the law, beyond the provisions of the Criminal Procedure Act, which poses a risk of harming the foundation of the criminal justice system rather than guaranteeing the human rights of the defendant.

B. As to the method of determining “clearness of evidence” in the instant provision

(1) The instant provision only provides for the grounds for retrial when a new “clear evidence to acknowledge innocence, etc. against a person who has been pronounced guilty,” but does not provide for the assessment and determination of whether the newly discovered evidence should be made by any means. The Majority Opinion, by way of such determination, modifies the previous precedents that consider only the newly discovered evidence independently and separately and determine whether it is obvious to initiate retrial solely based on the value of the newly discovered evidence, and adopts the view that the court, which has rendered a final judgment subject to retrial, closely related and inconsistent with the newly discovered evidence, should also consider the existing evidence closely and inconsistent with the newly discovered evidence among those as the basis for the fact-finding.

The purport of the provision of this case is to review whether a final judgment can be maintained in consideration of the newly discovered evidence, since the newly discovered evidence has not been considered in the fact-finding of the final judgment, and such review is conducted by the court in consideration of the newly discovered evidence. However, if the court examines only the newly discovered evidence independently and separately and evaluates and determines whether it is evident, it can be limited by itself to acknowledge innocence, etc. regardless of the old evidence in which the final judgment was adopted. In addition, whether innocence, etc. can be recognized can only be determined by comparing and evaluating new evidence with the old evidence and examining whether there is any error or inconsistency in the fact-finding of the final judgment, even if it is inevitable to determine whether to commence a new evidence alone, it goes against the logic of the accident in the process of determining whether the ground for retrial falls under the grounds for retrial under the provision of this case.

Nevertheless, it cannot be denied that the previous precedents have reached an opinion that the scope of grounds for retrial falling under the provision of this case should be excessively restricted upon considering the view that the requirements for the obviousness of evidence should be determined under the provision of this case. This is against the purport of the retrial system that the court should not punish a defendant who has been punished only once by taking account of the different grounds for retrial, because the provision of this case is based on the appearance of new evidence unlike the remaining grounds for retrial under Article 420 of the Criminal Procedure Act. For this reason, the majority opinion changed the opinion of the previous precedents. Accordingly, the determination of whether to acknowledge innocence, etc. constitutes clear evidence should be made by taking into account the newly discovered evidence and the old evidence which served as the basis for the fact-finding in the final and conclusive judgment. However, the facts established through a careful deliberation of facts in the relevant court or the final and conclusive judgment have become final and conclusive through a prudent examination, and it is reasonable that the retrial is an exceptional emergency relief procedure, and that the retrial is a new ground for the final and conclusive judgment being established through an organic examination of evidence and evidence newly discovered in the final judgment procedure.

(2) Where it is highly probable that the final judgment of conviction subject to review would not be maintained as it is, as a result of comparison and evaluation, by taking into account the newly discovered evidence and the old evidence, which forms the basis for the fact-finding of the judgment subject to review, closely related and inconsistent with each other, such new evidence constitutes “clear evidence” as provided in the instant provision.

As such, it is not easy to define whether the result of comparison and evaluation has reached a certain degree, but it is obvious to recognize innocence, etc. in excess of the degree of doubt as to the legitimacy of the final and conclusive judgment. However, given that such a problem falls within the sphere of fact-finding in criminal proceedings with broad view, it is necessary to indirectly see the meaning of the degree of examination required for the recognition of innocence, etc. as stated above through comparison with the case where it is an issue whether to maintain the conviction in the appellate court because the defendant appealed and contests the fact-finding which was found guilty once in the fact-finding court under the Criminal Procedure Act.

In the litigation proceedings before the judgment of conviction becomes final and conclusive, the defendant is presumed innocent until the judgment of conviction becomes final and conclusive (Article 27(4) of the Constitution, Article 275-2 of the Criminal Procedure Act), and the facts must be acknowledged based on evidence and the facts constituting a crime should be proved to the extent that there is no reasonable doubt (Article 307 of the same Act). The probative value of evidence shall be determined by the judge’s free judgment (Article 308 of the same Act). The Criminal Procedure Act provides that “where there is a violation of the Constitution, Acts, orders or rules affecting the judgment” or “where there is any ground affecting the judgment due to mistake of facts” as the grounds for appeal (Articles 361-5 subparagraphs 1 and 14 of Article 3), and the appellate court may review the propriety of fact finding in the judgment of the court of first instance, contrary to the grounds for appeal, the Criminal Procedure Act provides that “when there is a violation of the Constitution, Acts, orders or rules affecting the judgment, the court of final and conclusive judgment shall be deemed to fall under Article 383(1).

On the contrary, a retrial is subject to a final judgment of conviction through a careful deliberation of facts through the pertinent tier or appeal. Accordingly, there is a difference between the court of final appeal and its existence in examining whether there was a violation of the Constitution, law, etc. affecting the judgment of the appellate court in an undetermined state. In addition, as stated in the text of the provision of this case, newly discovered evidence, such as the language of the provision of this case, should be “not guilty or acquittal” as to the final judgment of conviction, and such recognition should be “clear”. As such, considering whether there was a violation of the Constitution, law, etc., such as the principle of presumption of innocence, and its structure differ from the court of final appeal. As such, the result of comparison and evaluation of newly discovered evidence and the old evidence closely related and inconsistent therewith, which merely support or impeachment the facts charged, should be able to determine whether the final judgment of conviction can be maintained within the scope of judgment based on the judge’s free evaluation of evidence, and if it is obvious that there is a high probability that the final judgment of innocence can only change the meaning of the final judgment in this case.

(3) The separate opinion by Justice Kim Young-ran, Justice Park Si-hwan, Justice Kim Ji-hyung, Justice Park Ill-hwan, and Justice Kim Nung-hwan is that the court to which a request for a retrial was filed should completely re-examine evidence newly discovered and old evidence employed as a basis for fact

Unlike civil review, criminal review is divided into the procedure to deliberate whether to commence a new trial and the trial procedure on the case subject to a new trial after the decision to commence a new trial. Accordingly, the court in receipt of a request for a new trial should first proceed with the fact-finding procedures within the scope necessary for the deliberation of whether the request for a new trial is well-grounded, and the old evidence constituting the basis for fact-finding in the judgment subject to new trial shall be limited to the extent closely related and inconsistent with the grounds for new trial among them. The entire review of the case subject to new trial is conducted in the trial procedure conducted after the decision to commence new trial becomes final and conclusive, together with the prosecutor's additional evidence and impeachment activities on the part of the defendant. In this regard, the above separate opinion of the above separate opinion that the grounds for the request for new trial and the previous evidence that are not related to the grounds for new trial should be comprehensively reviewed may not only cause the waste of criminal justice by unnecessary duplicate

As above, I express my concurrence with the Majority Opinion.

Chief Justice Kim Young-ran (Presiding Justice)