[1] In a case where the protocol of examination of witness or the protocol of statement prepared in a separate case from the defendant's case subject to reexamination is submitted and employed as a documentary evidence of a prosecuted case subject to reexamination, whether it constitutes "the testimony of the original judgment" under Article 420 subparagraph 2 of the Criminal Procedure Act (negative)

[2] The meaning of "when clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act

[1] In a case separate from the defendant's case, where testimony was made in a separate case from the defendant's case, and the statement stating the testimony or a statement similar to the testimony was submitted as a documentary evidence for the defendant's case subject to retrial, it cannot be deemed as "the testimony of the original judgment" under Article 420 (2) of the Criminal Procedure Act, so even if the testimony was proved to be false by the final judgment, it shall not be included in the grounds for retrial under subparagraph 2 of the above Article.

[2] "When clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act means evidence that was not discovered in or could not be submitted even after it was discovered in the litigation procedures in the finalized original judgment, and whose value of evidence is deemed objectively superior to that of the final judgment in light of the empirical rule or logical rule to the fact-finding data, and it does not refer to evidence, the value of which is determined by the free evaluation of the judge.

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

[2] Supreme Court Order 88Mo46 dated July 24, 1984 (Gong1984, 1470), Supreme Court Order 88Mo38 dated February 19, 1990 (Gong1990, 1091), Supreme Court Order 91Mo45 dated September 10, 1991 (Gong1991, 2640), Supreme Court Order 95Mo67 dated November 18, 1995 (Gong1996, 107), Supreme Court Order 96Mo72 dated August 29, 196 (Gong196Ha, 2953), Supreme Court Order 95Mo38 dated January 16, 197 (Gong1998, 1989)

Re-appellant

Daegu District Court Order 98Reno5 dated June 1, 1999

The reappeal is dismissed.

The grounds of reappeal are examined.

1. In a case separate from the defendant's case, where testimony was made in a separate case from the defendant's case, and the statement stating the testimony or a statement similar to the testimony was submitted as a documentary evidence for the defendant's case subject to retrial, this cannot be deemed to constitute "the testimony of the original judgment" under Article 420 (2) of the Criminal Procedure Act, so even if the testimony was proved to be false by the final judgment, it cannot be included in the grounds for retrial under Article 420 (2) of the Criminal Procedure Act.

According to the reasoning of the order of the court below and the record, on January 24, 1995, the applicant for a retrial was convicted on the charge that Non-Indicted 1 instigated Non-Indicted 2 to request for a retrial on July 5, 1994 and submitted a letter of complaint containing false facts to the Daegu District Court, which became final and conclusive after being convicted of Non-Indicted 3 as a witness of Non-Indicted 4's telephone conversations on May 26, 1994, but Non-Indicted 1 stated that "Non-Indicted 3 was not the first voice of the District Court," and that Non-Indicted 9's testimony was not the fact that Non-Indicted 4 was proved to be a witness of Non-Indicted 1, Daegu District Court, and Non-Indicted 9's testimony to the non-Indicted 3 as a witness of Non-Indicted 1, Daegu District Court, which became final and conclusive on July 9, 199, and that Non-Indicted 3, a witness of Non-Indicted 1, a witness of Non-Indicted 4, was found guilty 97, and found guilty.

Therefore, even if Nonindicted 3 was punished for perjury, it is reasonable that the court below determined that the testimony, which was evidence of the judgment subject to a retrial, does not constitute a case where it was proved to be false by a final judgment, and there is no error of law as otherwise alleged in the grounds for reappeal.

2. "When clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act means evidence that was not discovered in, or could not be submitted even if it was discovered in, the litigation procedures in the finalized original judgment, and the value of such evidence is deemed objectively superior to that of the evidence based on the empirical rule or logical rule to the fact-finding data. It does not refer to evidence, the value of which is determined by the judge's free evaluation of evidence (see, e.g., Supreme Court Order 84Mo46, Jul. 24, 1984; Order 95Mo67, Nov. 18, 195; Order 95Mo38, Nov. 16, 1997).

According to the above review, even if Nonindicted 3 was punished for perjury as above, it cannot be deemed as objectively superior to that of Nonparty 1 and Nonindicted 3’s statement to the effect that: (a) the recorded tape submitted by Nonindicted 3 to the National Institute of Scientific Investigation by Nonindicted 3 was not confirmed as to whether the applicant for a retrial was the recorded tape immediately before the applicant submitted it to Nonindicted 3; and (b) the value of evidence, the value of which the judgment subject to a retrial, which was considered as a material for fact-finding, did not have any currency identical to that of the recorded tape; and (c) Nonindicted 3 requested the appraisal of the recorded tape, as it was received by Nonindicted 3 from the applicant for a retrial, cannot be deemed as objectively superior to that of Nonparty 1 and Nonindicted 3, rather than that of Nonindicted 3’s statement. In addition, since all of the evidence submitted by the applicant for a retrial

Therefore, the court below's determination that the materials submitted by the applicant for retrial do not constitute a new evidence to acknowledge innocence is reasonable, and there is no error of law as otherwise alleged in the grounds for reappeal.

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)