The meaning of "when clear evidence to acknowledge innocence, which is grounds for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act, is newly discovered"

In a case where clear evidence to acknowledge innocence under Article 420 subparagraph 5 of the Criminal Procedure Act is newly discovered, the evidence which was not discovered in the litigation procedures in the finalized original judgment, or was not submitted or examined even if it was found, and the value of such evidence should be objectively set aside compared with other evidence, and it does not refer to the evidence whose value of evidence depends on the free evaluation by the judge.

Article 420 subparagraph 5 of the Criminal Procedure Act

Supreme Court Order 81Mo7 dated February 21, 1981 83Mo11 dated April 7, 1983

Claimant

Attorney Jeong Jong-soo

Seoul Criminal Court Order 88Ro5 dated June 15, 1988

The reappeal is dismissed.

The grounds of reappeal are examined.

Article 420 subparagraph 5 of the Criminal Procedure Act provides that "when clear evidence to acknowledge innocence is newly discovered" means any evidence which has not been discovered or could not be produced or examined in the litigation proceedings in the finalized original judgment, and whose value of such evidence should be objectively stated compared with other evidence, and 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 81Mo1, Apr. 7, 1983; Order 81Mo11, Apr. 7, 1983).

According to the reasoning of the original decision, the court below determined that each house rent contract and each monthly rent contract, which the claimant claims as the first point, cannot be concluded to have the right to dispose of or operate the school of this case, which is located in the building alone, even if the claimant rents the building of this case as stated in the records, and therefore, it cannot be concluded that there is no clear evidence as referred to in the above Article, and as a statement to the witness of the lawsuit bound in the records of other accused case, it is nothing more than evidence the value of the evidence of the judge's free evaluation. Second, the notice of the preparation of the deposit passbook or the tax office's income amount, which is claimed as the second point, shall not be considered as evidence newly discovered after the judgment became final and conclusive, and the statement of the Kim Young-young and Park Jong-young, which are cited as the third point, is merely a certification that cannot be judged by the judge's free evaluation of evidence and cannot be deemed as evidence. In light of the records, the court below's determination of the above court below is justified and there is no error in the misapprehension of law as to reverse or misapprehension of the legal principles as to the record of appeal.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won