Defendant

Attorney Compulsory Appearance

Defendant

Seoul High Court Decision 2002No293 delivered on March 28, 2002

The motion for retrial of this case is dismissed.

1. Determination of the original judgment

On January 17, 2002, the Defendant was sentenced to 10 years of imprisonment with prison labor for a violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. (Rape, Injury by Rape, etc.) and the Punishment of Violences, etc. Act at the government branch of the Seoul District Court on January 17, 2002, and the Defendant and the prosecutor appealed from the Seoul High Court on March 28, 2002, on the ground that “the original trial goes against Article 3 of the Act on Special Cases Concerning the Punishment of Specific Crimes and is erroneous in applying Article 35 of the Criminal Act” on the grounds that “the original trial is too limited to Article 3 of the Act on Special Cases Concerning the Punishment of Specific Crimes, and the Defendant again was sentenced to 10 years of imprisonment, and the fact that the

2. Summary of grounds for request for retrial;

A. During the investigation process of a case subject to review, the Defendant: (a) led to the Defendant’s fingerprints in the police officer’s assault and “in a criminal scene; (b) made a confession of the crime by deception that “on the face of a confession, the part of robbery would be deducted; and (c) intimidation that “on the face of a confession, would make the Defendant receive protective custody by taking the robbery;” and (d) as such, the state of the detained trial continues until the prosecutor’s office and the court continued to commit the crime of this case, even though the Defendant did not commit the crime of this case, the Defendant was guilty of a false confession for the purpose of punishing the Defendant’s non-voluntary confession. Therefore, the judgment subject to review erred by misapprehending the judgment of conviction by finding the Defendant guilty of the charge as evidence, by finding the Defendant’s non-voluntary confession.

B. According to the report of the National Scientific Investigation Institute’s request for appraisal and the prosecutorial investigator’s investigation report compiled in the records of the case subject to review, after the occurrence of the instant case, a sperm reaction was seen from the quality content of the victim, which was collected immediately after the occurrence of the instant case, but the gene type of other related men, other than the victim’s gene type, was not detected and the specific person was not discovered, and thus, the offender is presumed to be a witness with no intention. However, around November 2004, there was a new ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act, since the fixed examination conducted around November 204.

C. In light of the fact that the defendant, at the time of the occurrence of this case, is clear that he had a public bath rather than the victim's house, which is the scene of the crime, the horse and conversation of the offender stated by the victim do not fit the actual status of the defendant, the victim and the defendant did not come to ties during the investigation process, and there is no evidence that the victim's quality was the fixed amount detected in the victim's life, etc., the defendant should be given an opportunity to prove innocence at least through retrial.

3. Determination

A. First, the argument that police officers involved in the investigation of a case subject to new trial committed a crime relating to duties, such as assault and intimidation of the defendant during the investigation process, is not proved by a final judgment, and thus does not constitute grounds for new trial under Article 420 subparag. 7 of the Criminal Procedure Act. The argument that the confession of the defendant, which was the evidence of the judgment subject to new trial, was made in a state where the confession of the defendant was made without ar

B. Next, "when clear evidence to acknowledge innocence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act refers to evidence that was not discovered in or could not be produced or examined even if it was discovered in the final judgment procedure subject to retrial, which is the time when the evidence is newly discovered or is able to be submitted with objective advantages compared with other evidence. In light of the records of the case subject to retrial, the fact that the defendant shows normal views in the fixed examination cannot be deemed as evidence which could not be submitted in the litigation procedure subject to retrial, and it is difficult to view that the objective advantages compared with other evidence of guilt is acknowledged.

C. Other arguments by the Defendant, on the grounds of the request for retrial, do not constitute grounds for retrial under Article 420 of the Criminal Procedure Act.

4. Conclusion

Therefore, the defendant's request for retrial of this case is without merit, and it is dismissed in accordance with Article 434 (1) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Ho-won (Presiding Judge)