2012 Violation of the Special Act on the Punishment of Special Crimes in Inventory 1

Net E. * (Death on September 30, 1973, Death on September 197)

Reference domicile Posisi

1. Spouse of the defendant** (25****** -2)

2. The defendant's children this** (59***** -1)

Residence Seoul Songpa-gu of Appellants

Law Firm Samil

Attorney Song-chul in charge

Article 2 of the Act on the Organization of the Revolution and the Prosecution Division of the Revolution enacted on June 21, 1961

Court of Revolution 1961 No. 110 decided September 14, 1961

Defendant * Part of conviction against Defendant *

Mar. 21, 2012

The review will begin on the judgment of review.

1. Final and conclusive judgments subject to retrial;

In the Supreme Court of the Revolution established on June 21, 1961 under Article 2 of the Organization of the Public Prosecutor's Office Act, the defendant was sentenced to 10 years of imprisonment due to a violation of the Special Act on the Punishment of Special Crimes, and not guilty of the remainder of the facts charged, but appealed on the part of the conviction (hereinafter referred to as the "subject matter of retrial of this case").

11. 8. 8. Appeal Nos. 10 of the Tribunal of Appeals against the Revolution was dismissed, and the judgment of review became final and conclusive around that time.

2. Summary of request for retrial;

Since the defendant was arrested and detained without the warrant of the court at the time, and was detained in excess of the period of detention under the Criminal Procedure Act, the fact that the investigator involved in the investigation which was the basis of the judgment in the retrial was proved that the crime of illegal arrest and detention under Article 124(1) of the Criminal Act was committed, but since the statute of limitations has expired, it constitutes "when it is impossible to obtain the final judgment under Article 422 of the Criminal Procedure Act", there is a ground for retrial under Article 420 subparag. 7 of the Criminal Procedure Act.

3. Determination

(a) the existence or absence of jurisdiction and jurisdiction (i)

Article 423 of the Criminal Procedure Act provides that "the request for retrial shall be subject to the jurisdiction of the court in the original judgment." Therefore, in principle, the Revolution Court which made the decision on retrial shall have jurisdiction over the request for retrial of this case. However, on May 9, 1962, the Revolution Court shall be dissolved by a resolution at the highest meeting of the National Reconsideration Council and shall

On the other hand, the Act on the Organization of the Revolution and the Act on the Organization of the Prosecutors' Office shall be transferred to the Supreme Court where the Revolution Court dissolvess by the resolution of the National Council for the case, but exceptionally, the case against the person subject to the military law shall be transferred to the High Military Court for the case (Article 14). However, after the dissolution of the Revolution Court, Article 2(1)12 of the Act on the Temporary Measures for Crimes related to the Promotion of Revolution and the Execution of Business (repealed by Act No. 1198, Dec. 13, 1963) of the Act on the Special Measures for the Punishment of Crimes related to the Promotion of Revolution and the Execution of Business, which was enacted by Act No. 1198, was decided by the Military Court for the case which had jurisdiction over the area in question.

However, the defendant is not a person subject to military law, but is currently not under emergency martial law, and criminal facts against the defendant in the judgment subject to review do not constitute any crime listed in the Military Criminal Act and the Martial Law Act (see Article 27(2) of the Constitution, Articles 2(1) and 3(1) of the Military Court Act, and Article 10(1) of the Martial Law Act). In a case where the military court is removed from the military after the judgment of military court became final and conclusive and there is no jurisdiction over the military court, the jurisdiction of the retrial case is located in the general court of the same instance other than the military court (see Supreme Court en banc Decision 84Do2972 delivered on September 24, 1985).

In full view of the above, the jurisdiction of the petition for retrial of this case is determined by the Constitution.

I think that it is in this chapter.

(2) Whether jurisdiction exists

As long as the jurisdiction of the request for retrial of this case is in the general court, its jurisdiction shall be determined in accordance with the general provisions of the Criminal Procedure Act, and in the case of territorial jurisdiction, the defendant's domicile at the time of the application is "Seoul Yongsan-gu," under Article 4 (1) of the Criminal Procedure Act, the defendant has jurisdiction over this court pursuant to Article 4 (1) of the Special Act on the Punishment of Special Crimes, and in the case of an object jurisdiction, the defendant was prosecuted for violating Article 6 of the Special Act on the Punishment of Crimes, and the statutory penalty under the above provision is death penalty, life imprisonment, or imprisonment with prison labor for not less than ten years, the court of first instance has jurisdiction over the collegiate division of the district court

B. Determination on the grounds for a retrial (1)

Article 420 subparagraph 7 of the Criminal Procedure Act provides that "any crime concerning duties of a judge, public prosecutor or judicial police officer who has participated in an original judgment, in the previous judgment, in the previous judgment or in an investigation based on the judgment, or in an indictment or in an investigation based on which the public prosecution was based, shall be deemed as one of the grounds for retrial" when proved by a final judgment, and Article 422 of the same Act provides that "when it is impossible to obtain a final judgment on the grounds of a request for retrial as proof of an offense by a final judgment under the preceding two Articles, such fact may be proved and requested again: Provided, That this provision provides that "when it is impossible to obtain a final judgment on the grounds of lack of evidence," "when it is impossible to obtain a final judgment on the grounds of lack of evidence" means a case where a judgment of conviction cannot be obtained, or there is a de facto disability

According to the records of this case, the defendant was arrested to investigators on June 13, 1961 without a court warrant on August 20, 1961, and was prosecuted for violating the Special Act on the Punishment of Special Crimes by the Prosecution Office of the Revolution.

(3) Determination

(A) Article 9 of the former Constitution at the time of the instant case (amended by Act No. 6 of Dec. 26, 1962) provides, “All citizens shall enjoy personal liberty. All citizens shall not be arrested, detained, searched, examined, punished, and forced labor except as provided by Act. They shall have a judge’s warrant in case of arrest, detention, or search: Provided, That if there is apprehension that flagrant offenders in a crime may escape or destroy evidence, an investigative agency may request the issuance of an ex post facto warrant as provided by Act. Anyone who is arrested and detained shall have the right to request the court to review the right to prompt assistance of counsel and the legitimacy thereof. Article 64 provides, “When martial law is declared, the rights of citizens and the authority of administrative agencies or courts may be taken special measures as provided by Act.”

In addition, Article 13 of the former Martial Law Act (amended by Act No. 3442 of Apr. 17, 1981) at the time, "in the area of emergency martial law, the martial law commander may, when necessary for military purposes, take special measures concerning arrest, detention, search, seizure, dwelling, transfer, press, publication, assembly, or collective action: Provided, That the martial law commander should promulgate the contents of the measure.

In addition, the Military Revolution Committee (as of May 19, 1961, hereinafter referred to as the "National Assembly") promulgated on May 17, 1961 on May 10, 1961, it may, without a warrant of a court, arrest, detention, and search when necessary for the performance of the revolution in an area under martial law. "The Special Act on the Provisional Detention, etc. of Persons, enacted by Act No. 644 of July 3, 1961 (repealed by Act No. 1410, Sept. 30, 1963) provided that a person who commits an offense under Articles 4 through 7 of the Special Act on the Punishment of Special Crimes may be arrested, seized, and searched without a warrant of a judge with respect to a person who commits an offense under Articles 4 through 7 of the Special Act on the Punishment of Persons, etc. (Article 2(1)1 of the same Act).

The facts charged against the defendant are difficult to view that there is a military necessity to the extent that the defendant can be arrested and detained without the warrant of a judge. Even if the defendant can be arrested without the warrant of a judge, unless there is an explicit provision excluding the application of the provisions of the Criminal Procedure Act concerning the period of detention, the Criminal Procedure Act shall apply to the period of detention. According to Articles 202, 203, and 205 of the Criminal Procedure Act at the time, the period of detention by a judicial police officer is within 10 days, and the period of detention by a prosecutor can be extended within 10 days with the permission of a judge of the district court within 10 days and only once within 30 days. As seen above, the defendant was arrested on June 13, 1961 and was detained for 69 days until August 20, 1961, and thus exceeded the period of detention under the Criminal Procedure Act.

Therefore, it is deemed that the investigator who participated in the investigation, which was the basis of the judgment subject to review, committed the crime of illegal arrest and confinement under Article 124(1) of the Criminal Act by detained the defendant beyond the period of detention under the Criminal Procedure Act.

However, since the statute of limitations for five years has expired in accordance with Article 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007) and Article 249(1)4 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007), since investigators have proved that they committed a crime in the course of performing their duties by illegal confinement of the accused, there is a legal obstacle that no final judgment can be obtained, even though they have proved that they committed a crime in the course of performing their duties instead of a final judgment.

Ultimately, since investigators proved that they committed the above crimes against the defendant, and since they cannot obtain a final judgment on the above crimes due to legal problems, there are grounds for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act in this case.

4. Conclusion

Therefore, since the request for retrial of this case is well-grounded, it shall be decided as per Disposition by the commencement of a retrial on the judgment subject to retrial pursuant to Article 435(1) of the Criminal Procedure Act.

The presiding judge, senior judge;

Judges fixed-ranking

Judges Kim Gung-sung