The meaning of "when clear evidence is newly discovered," which is a ground for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act

The term "when clear evidence is newly discovered" as referred to in subparagraph 5 of Article 420 of the Criminal Procedure Act means evidence which was not produced or examined even if it was not discovered or discovered in the litigation procedures of the final judgment, and the value of such evidence is recognized as being objective superior to the evidence that the final judgment is based on the fact-finding data.

Article 420 of the Criminal Procedure Act

[Plaintiff-Appellee] 84Mo23 decided Jun. 14, 1984 (Gong1987,680) dated Feb. 11, 1987

[Judgment of the court below]

Seoul High Court Order 84Ro17 dated August 17, 1990

The reappeal is dismissed.

The grounds of reappeal are examined.

(1) The confessions made by Co-Defendant 1 and Co-Defendant 2 in the investigation agency are false confessions by adviser and it is indirect evidence that the final judgment was admitted as evidence of convictions. On the other hand, since the victim who was asked by the offender and the offender remains at the scene of the crime, the investigation agency should have seen whether the re-appellant was a criminal defendant through the blood test, despite the fact that the Re-Appellant did not conduct such blood test, but did not search for seizure as evidence. Accordingly, the argument that the final judgment recognized criminal facts by evidence without evidence or forged evidence does not constitute grounds for retrial because it does not constitute "when it has been proved that the evidentiary documents or evidence was forged or altered by a final judgment" in Article 420 subparag. 1 of the Criminal Procedure Act, or "when it has been proved by a final judgment that the confession was obtained by a criminal act such as the adviser of the investigation agency, etc." in subparagraph 7 of the same Article.

(2) The phrase “when clear evidence is newly discovered” as stated in Article 420 subparag. 5 of the above Article refers to evidence that was not discovered or could not be submitted or examined even if it was discovered in the procedure of the final judgment, and the value of such evidence is acknowledged as objective superior to the evidence of the final judgment (see Supreme Court Order 84Mo23, Jun. 14, 1984; 84Mo23, Jun. 14, 1984; 84Mo23, Feb. 14, 1984). According to the records, the evidence that the Re-Appellant newly discovered that the Re-Appellant recorded the statements of Lee Young-young and Maok-ok is not new that the contents of each tape recorded are different from those of the testimony made in the final judgment procedure, and it is the same as the witness’s testimony to determine the value of evidence by the court’s free evaluation of evidence, and even if the contents of each tape recorded after the final judgment are itself, it cannot be deemed that the Re-Appellant’s objective evidence that can be acknowledged after the final judgment.

(3) As long as the grounds for a retrial asserted by the Re-Appellant do not constitute grounds for retrial as above, the court below did not err in finding facts as to the grounds for a retrial, such as examination of a witness of right leather and Kim Chang-sik. All arguments are groundless.

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

Justices Park Yong-dong (Presiding Justice)