Whether a ground for retrial under Article 420 subparag. 7 of the Criminal Procedure Act constitutes grounds for retrial under Article 420 subparag. 7 of the Criminal Procedure Act in a case of an application for a ruling on an illegal confinement against a judicial police officer who has been accused of a crime of illegal confinement where the court recognizes the fact

In a case where a judicial police officer, who was involved in an investigation which was the basis of a public prosecution, filed a complaint due to an illegal confinement, etc., but a request for the ruling on whether to institute a non-prosecution was made by a prosecutor, and the High Court, who was requested for the ruling, recognized the illegal confinement for 29 hours by the prosecutor, and the prosecutor, in consideration of various circumstances, decided to dismiss an application for the ruling on the grounds that the prosecutor could have taken a disposition not to institute a disposition not to institute a prosecution on the suspension of indictment, and became final and conclusive as is, it constitutes “where it is proved that the final and conclusive judgment would be proven that a crime is proven by a final and conclusive judgment, and such fact is not obtainable” under Article 422 of the Criminal Procedure Act, which constitutes “when it is proved that a judicial police officer who was involved in an investigation based on the public prosecution

Articles 260(1), 420 subparag. 7, and 422 of the Criminal Procedure Act

Supreme Court Order 93Mo66 dated July 14, 1994 (Gong1994Ha, 2244) Supreme Court Order 96Mo72 dated August 29, 1996 (Gong196Ha, 2953) (Gong196Ha, 2953)

Re-appellant

Seoul District Court Order 93Reno15 dated December 2, 1996

The order of the court below shall be reversed and the case shall be remanded to the Seoul District Court Panel Division.

1. First, we examine the grounds for reappeal.

The court below held that there is no ground for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act, which corresponds to the case where clear evidence to acknowledge a minor crime committed by not guilty or by the original judgment against the re-appellant was newly discovered, or that there is no ground for retrial under Article 420 subparagraph 1 of the Criminal Procedure Act, which corresponds to the case where evidence of the original judgment was forged by a final judgment. In light of the records, the above judgment of the court below is just, and there is no ground for this argument.

2. It shall be deemed ex officio.

According to the reasoning of the order of the court below, the court below found that the non-indicted who was the police officer involved in the investigation, which was based on the original judgment, filed a complaint with the prosecutor due to the crime of illegal confinement by the re-appellant, but the prosecutor made a decision of non-prosecution, but the Seoul High Court, which found that the non-indicted was illegal confinement for 29 hours since the non-indicted was dissatisfied with the judgment and the Seoul High Court's defect in the application for adjudication with the Seoul High Court was found to have been illegal confinement for the non-indicted. However, in consideration of various circumstances, the prosecutor dismissed the application for adjudication of the re-appellant on the ground that the non-indicted could have been subject to the non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's non-prosecution's decision and the Supreme Court's decision thereon,

However, if there are the above circumstances, it should be deemed that it constitutes "when it proves that a crime is proven by a final and conclusive judgment pursuant to Article 420 subparagraph 7 of the Criminal Procedure Act, as stipulated in Article 422 of the same Act," and it constitutes "when it is impossible to obtain such final and conclusive judgment."

Therefore, the order of the court below that issued the opposite conclusion is erroneous in the misunderstanding of legal principles as to Article 422 of the Criminal Procedure Act, and this affected the outcome of the trial. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)