A. The meaning of the so-called “when clear evidence is newly discovered” under Article 420 subparag. 5 of the Criminal Procedure Act

B. Whether the exclusion provision of judge involved in the previous trial under Article 17 subparagraph 7 of the Criminal Procedure Act applies to the case of request for retrial

Even though a judge has participated in a final judgment which becomes the object of a request for retrial, such request for retrial shall not be excluded.

Article 420 subparagraph 5 of the Criminal Procedure Act, Article 17 subparagraph 7 of the Criminal Procedure Act

Re-appellant

Gwangju High Court Decision 63Ro16 delivered on May 2, 1964

The reappeal is dismissed.

The grounds for re-appeal of the re-appellant are the facts alleged as grounds for retrial or the grounds for appeal against the dismissal ruling of the request for retrial. However, the presiding judge who made the decision of re-appeal of this case is a judge in the first instance court of the final judgment against the re-appellant, and the case of the request for retrial of this case must

However, according to the reasoning of the decision of the court below, the court below maintained the decision of the court of first instance that dismissed the request for retrial on the ground that the ground that the ground for retrial of this case asserted by the re-appellant is the 1961 court of Gwangju District Court 1962,7,10 and 12,26 of the same Act as the 1962 court of Gwangju District Court 1962, 192, 26 of the same Act was extinguished, and that the right to request a retrial is extinguished, and the so-called "when clear evidence is newly discovered" in Article 420, 420, 5 of the Criminal Procedure Act refers to any evidence that is not discovered at the court below of final judgment or that such evidence can be objectively superior to that of the evidence. Thus, it is reasonable to maintain the reasoning of the decision of the court of first instance on the ground that Non-Indicted 1's wife name and witness 2 of the witness who applied by the re-appellant cannot be seen as a new evidence described above, and therefore, it is excluded from all of this case.

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

Judge Do-dong (Presiding Judge) of the Supreme Court