[1] Where it is evident that the motion for challenge is aimed at delaying a lawsuit, the court's measures and the method of determining whether it falls under the case

[2] The case dismissing the motion for challenge on the ground that the motion for challenge was for delay of litigation by taking into account the progress and circumstances of the trial

[3] The meaning of "when there is a concern about an unfair trial" under Article 18 (1) 2 of the Criminal Procedure Act

[4] The case holding that it is difficult to view that there are objective circumstances where it is difficult to expect a fair trial on the grounds of non-permission decision on the prosecutor's application for changes in indictment

[1] Where it is obvious that an application for challenge is for the purpose of delaying a lawsuit, the court or the judge in receipt of the application is illegal in itself, and thus the court or the judge in receipt of the application can dismiss it by decision, and whether it is an obvious challenge for the purpose of delaying a lawsuit is not determined by the method of vindication submitted by the applicant, but by the method of vindication submitted by the applicant, and it may be determined by taking into account

[2] The case dismissing the motion for challenge on the ground that the motion for challenge was for delay of procedure by taking into account the progress and situation of the trial

[3] Article 18 (1) 2 of the Criminal Procedure Act concerning the cause of challenge does not refer to the case where there is a subjective circumstance that the party might be an unfair trial, but rather, there is an objective circumstance where it is reasonable to have the doubt that it would be unfair trial in relation to a case with a judge as an ordinary person's judgment.

[4] The case holding that it is difficult to view that there are objective circumstances where it is difficult to expect a fair trial on the grounds of non-permission decision on the prosecutor's application for changes in indictment.

[1] Article 20 (1) of the Criminal Procedure Act / [2] Article 20 (1) of the Criminal Procedure Act / [3] Article 18 (1) 2 of the Criminal Procedure Act / [4] Articles 18 (1) 2 and 298 of the Criminal Procedure Act

[3] Supreme Court Order 91Mo79 dated December 7, 1991 (Gong1992, 548), Supreme Court Order 95Mo10 dated April 3, 1995 (Gong1995Sang, 2002), Supreme Court Order 95Mo93 dated February 9, 1996 (Gong196Sang, 107)

Re-Appellant (Defendant)

Attorney Kim Hun-hoon

Seoul High Court Order 2000 seconds448 dated December 21, 2000

The reappeal is dismissed.

The grounds of reappeal are examined.

1. On the first ground for appeal

A. According to the records, the court below dismissed the motion of this case raised orally by the defense counsel of the defendant during the 11st trial of the case No. 99No2043 against the defendant on the ground that the motion of this case was for delay of litigation.

B. If it is obvious that the motion for challenge is for the purpose of delaying a lawsuit, the court or judge in receipt of the motion can dismiss it by decision because it is illegal in itself. Whether it is an obvious motion for the purpose of delaying a lawsuit can not be determined by the method of vindication submitted by the applicant, but by taking into account all the circumstances shown in the case records. According to the records, the appellate court, which was the appellate court, dismissed the motion for challenge for the purpose of this case more than six times before and after the commencement of the first trial date on November 17, 1999 at the appellate court, until the date of the first trial date on December 21, 200 where the motion for challenge was filed, and more than nine witnesses were adopted and examined, and the court below rejected the motion for modification of the indictment during the first trial date on the above 11th trial date, and the defense counsel's request for a witness as to the motive that did not have already been adopted as evidence, and it cannot be seen that the above motion for challenge was dismissed for the purpose of this case's delay in the trial.

2. On the second ground for appeal

Article 18 (1) 2 of the Criminal Procedure Act concerning the cause of challenge refers to the time when there is a subjective circumstance that the party might become an unfair judgment, not to refer to the time when there is a doubt that it is reasonable to recognize that there is an unfair judgment in relation to a case with a judge as an ordinary person (see Supreme Court Order 95Mo93, Feb. 9, 1996).

As pointed out in the grounds of reappeal, the court shall grant permission unless the prosecutor's application for changes in indictment does harm the identity of the facts charged. However, it is still left to the court. In addition, even if the court below rendered a decision of non-permission on the prosecutor's application for changes in indictment with respect to the defendant, it is difficult to expect the fair trial only for such reasons, and even if examining the record, there is no obvious material to deem that the presiding judge has a conviction order of a serious crime against the defendant, and therefore, there is no error of law such as misapprehension of legal principles as alleged in the grounds of reappeal.

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

Justices Lee Yong-woo (Presiding Justice)