[1] The meaning of "when clear evidence to acknowledge innocence under Article 420 subparagraph 5 of the Criminal Procedure Act is newly discovered"

[2] The meaning of Article 420 subparagraph 7 of the Criminal Procedure Act

[1] "When clear evidence to acknowledge innocence" under Article 420 subparagraph 5 of the Criminal Procedure Act is newly discovered" refers to evidence that was not discovered in the procedure of the final judgment or could not be produced or examined, and where evidence is found or can be submitted when objective advantages are acknowledged compared with other evidence in the value of evidence. Therefore, evidence whose value of evidence depends on the free evaluation of evidence by the judge does not constitute evidence.

[2] Article 420 Subparag. 7 of the Criminal Procedure Act provides, “When it is proved by a final judgment that a crime concerning duties has been committed by a judge who participated in the original judgment, the judgment prior to the trial, or the investigation based on the judgment, a public prosecutor or a judicial police officer who participated in the institution of a public prosecution, or in the investigation based on the indictment, is proved by the final judgment” as separate grounds for retrial. This is a case where a separate final judgment or evidence exists to replace the final judgment under Article 422 of the same Act as to

[1] Article 420 subparag. 5 of the Criminal Procedure Act / [2] Article 420 subparag. 7 and Article 422 of the Criminal Procedure Act

[1] [2] Supreme Court Order 95Mo67 dated Nov. 8, 1995 (Gong1996Sang, 107) / [1] Supreme Court Order 88Mo38 dated Feb. 19, 1990 (Gong1990, 1091) dated Sept. 10, 1991 (Gong1991, 2640) Supreme Court Order 96Mo35 dated Aug. 22, 1996

Re-appellant

Busan District Court Order 96Ro1 dated July 12, 1996

The reappeal is dismissed.

We examine the grounds for reappeal.

Article 420 subparagraph 5 of the Criminal Procedure Act provides that "when clear evidence to acknowledge innocence is newly discovered" refers to evidence that was not discovered in the procedure of a final judgment or could not be submitted or examined, and it is time when evidence is discovered or submitted that objective superiority is recognized compared with other evidence. Therefore, it is established by a judge's free evaluation of evidence that the value of evidence depends upon the judge's free evaluation of evidence does not constitute such evidence (see Supreme Court Order 86Mo22 delivered on February 11, 1987, Supreme Court Order 88Mo38 delivered on February 19, 199, Supreme Court Order 91Mo45 delivered on September 10, 191, etc.). Meanwhile, Article 420 subparagraph 7 of the Criminal Procedure Act provides that "when evidence is obtained from a separate final judgment or a final judgment of a public official or a judicial police officer who participated in an investigation based on the previous judgment or the judgment, or who participated in an investigation based on the public prosecution or the final judgment of a public prosecutor or a judicial police officer who participated in an investigation based on the final judgment, it can be proved."

According to the reasoning of the court below's order, the court below dismissed the appeal by the Re-Appellant on the ground that the Re-Appellant's mental and physical condition at the time of committing the crime subject to retrial was newly discovered with clear evidence that it is difficult to view that the Re-Appellant's mental and physical condition at the time of committing the crime subject to retrial had criminal responsibility, and the crime subject to retrial could not exist in ordinary persons. In such a case, the investigation agency or court should have conducted the mental judgment of the Re-Appellant at the time of the trial, but it cannot obtain a final judgment of conviction after the lapse of the statute of limitations, since there was no evidence that the Re-Appellant was in the state of mental and physical condition at the time of committing the crime subject to retrial, and there was no final judgment for falling under subparagraph 7 of the same Article, and there was no error of law such as misunderstanding of legal principles, violation of the rules of evidence, omission of judgment, etc., or omission of judgment in the judgment of the court below before and after the judgment of the court below, and there was no error in the misapprehension of law No. 1819 of law or 984.

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

Justices Lee Don-hee (Presiding Justice)