The meaning of "when clear evidence is newly discovered" under Article 420 subparagraph 5 of the Criminal Procedure Act.

The term "when clear evidence is newly discovered" in Article 420 subparagraph 5 of the Criminal Procedure Act refers to the evidence that was not discovered in, or could not be produced even after, the litigation procedures of the decision subject to a retrial, and where such evidence is found to have superior advantage than other evidence in the value of the evidence.

Article 420 subparagraph 5 of the Criminal Procedure Act

Supreme Court Order 84Mo55 dated October 16, 1984 85Mo25 dated August 14, 1985 85Mo25 dated October 29, 1985 85Mo35 Decided October 29, 1985

Re-appellant

Seoul High Court Order 84Ro20 dated August 19, 1985

The reappeal is dismissed.

The term "when clear evidence is newly discovered" as provided in subparagraph 5 of Article 420 of the Criminal Procedure Act means the evidence which was not discovered in or could not be submitted even if it was discovered in the litigation procedures of the judgment subject to review, and the evidence is found to have superior advantage than other evidence.

Of the grounds for retrial asserted by the Re-Appellant, the fact that the Re-Appellant did not participate in robbery or rape could be confirmed by the victim, etc., but failed to conduct a hearing, or that the Re-Appellant's crime was committed in the situation of re-appellant's dissipation after the re-appellant's taking advantage of the re-appellant's right, it cannot be deemed as a new case where there was an obvious evidence that the Re-Appellant failed to conduct an investigation despite the absence of any re-appellant's dissipation, etc. concealed in the Re-Appellant's house. However, although the Re-Appellant asserted the grounds for unfair sentencing, it does not constitute any ground for retrial listed in Article 420 of

Ultimately, the order of the court below that upheld the decision of the court of first instance that dismissed the petition for retrial is just and without merit, and the reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Il-young (Presiding Justice)