Where a claimant for a retrial dies before a decision on whether to commence a retrial becomes final and conclusive, whether to terminate the litigation procedures (affirmative), and in such a case, the court shall take the measures (=declaration of termination of the litigation

Considering the fact that there is no provision recognizing the "interception of litigation" as in the Civil Procedure Act with regard to a case where a person requesting a retrial has filed a request for retrial and dies in the process, and that the status of a party in a criminal procedure is difficult to recognize the concept similar to "the succession of rights or the subject matter of lawsuit" in civil litigation because the status of a party is interpreted as a binding force, the other person having the right to request a retrial shall terminate litigation proceedings based on the death of a person requesting a retrial, separate from where the other person having the right to request a retrial is separately determined before a decision on whether to commence a retrial becomes final and conclusive. In this case, it is reasonable to interpret that the court shall make a declaration of the completion of litigation procedures by decision, even if the procedure based on the request for a retrial is completed naturally, even if the final and conclusive procedure of the court is not clearly indicated, and it is difficult to deem that there is a harm caused by the death of a person requesting

Articles 420 and 432 of the Criminal Procedure Act

Appellants

Seoul Central District Court Decision 2006Da802, 1184 decided Dec. 28, 2006

Litigation proceedings based on the instant request for retrial were completed on March 24, 2008 due to the death of the claimant for retrial.

1. Case summary

On December 28, 2006, this court sentenced ten months of imprisonment with prison labor for the crime of violation of the Punishment of Violences, etc. Act (joint injury) and one year of suspended execution on July 12, 2007 for the crime of violation of the Attorney-at-Law Act, and decided on July 12, 2007 (the judgment of review). On March 3, 2008, the applicant for a retrial filed a request for reexamination of this case by asserting that the "clear evidence to acknowledge innocence" under Article 420 subparagraph 5 of the Criminal Procedure Act was newly discovered for the crime of violation of the Punishment of Violences, etc. Act (joint injury).

2. Determination:

In light of the fact that there is no provision that recognizes the "litigation system" as referred to in the Civil Procedure Act in the Criminal Procedure Act concerning the case where a person who filed a request for a retrial dies during the procedure for a retrial, and in general, the status of the parties in the criminal procedure is interpreted to be a continuous and continuous manner, and it is difficult to recognize the concept similar to "the succession of rights or the subject matter of lawsuit" in the civil procedure, it is reasonable to view that, in a case where a person who filed a request for a retrial dies before a decision on whether to commence a retrial becomes final and conclusive, the other person having the right to request a retrial has to separately

On the other hand, it is reasonable to interpret that the court should make a declaration of the completion of litigation procedures where the litigation procedures based on the request for a retrial are completed naturally due to the death of the requester for a retrial before a decision on whether to commence a retrial becomes final and conclusive. This is because, despite the fact that the litigation procedures based on the request for a retrial have been completed naturally due to the death of the requester for a retrial, it would cause inconvenience in responding to the case where the court does not explicitly indicate the final process of the request for a retrial but there is no dispute over it (in the case of the actual criminal procedure, there is no system of application for designation as a date in the civil procedure). In addition, it is difficult to deem that there is

However, according to the records, it is clear that the defendant, who is the request for retrial of this case, was already killed on March 24, 2008, before a decision on whether to commence a new trial is made after the request for retrial.

Thus, since the litigation procedure based on the request for retrial of this case has been completed as a matter of course in accordance with the above legal principles, it shall be decided as per Disposition by explicitly declaring it.

Judges Posckic fever (Presiding Judge)