A. The meaning of “clear evidence” under Article 469 subparag. 5 of the Military Court Act and Article 420 subparag. 5 of the Criminal Procedure Act

B. The purport of Article 469 subparag. 7 of the Military Court Act, Article 420 subparag. 7 of the Criminal Procedure Act

C. In a case where multiple business embezzlement acts should be deemed a single comprehensive crime: (a) whether it is unlawful to indicate the part of acquittal in part of the single comprehensive crime in the text

A. In a case where clear evidence to acknowledge innocence as prescribed in Article 469 subparag. 5 of the Military Court Act and Article 420 subparag. 5 of the Criminal Procedure Act is newly discovered, the value of evidence should be determined to the extent that the value of evidence is objectively lower than that of other evidence, and it does not mean evidence, the value of which is determined by the judge’s free evaluation of evidence.

B. Article 469 Subparag. 7 of the Military Court Act and Article 420 Subparag. 7 of the Criminal Procedure Act provide as one of the grounds for retrial “when it is proved by a final judgment that a crime concerning duties has been committed by the military prosecutor, prosecutor, military judicial police officer, or senior judicial police officer who participated in the institution of a public prosecution or the investigation which served as the basis of the public prosecution.” This means that the existence of mistake in facts, such as the original judgment, has been significantly inferred due to the establishment of such occupational crime, and thus, re-examines and trials in accordance with the first instance trial or the appellate trial proceedings on the ground that the existence of mistake in facts in the original judgment has been clearly inferred. There may be cases where there may be cases where the fact-finding of the original judgment is not maintained due to the influence on the admissibility or probative value of evidence in the original judgment, but it does not necessarily mean that there is any such reason that

C. Even if multiple occupational embezzlements constitute a single act, it is reasonable to view that the legal interest of damage is a single act, and when it is recognized that the form of crime is identical, and that it is a series of acts due to the realization of a single criminal intent, it is deemed that it is a single crime.

D. Although it is not necessary to separately indicate the facts charged in relation to a single comprehensive crime in the text of the judgment even if some of them are found innocent, it does not constitute an illegal cause affecting the conclusion of the judgment even if it was indicated in the text of the judgment

A. Article 420 subparag. 5 of the Criminal Procedure Act (Article 469 subparag. 5 of the Military Court Act). Article 420 subparag. 7 of the Military Court Act (Article 469 subparag. 7 of the Military Court Act)

A. Supreme Court Order 87Mo44 dated Aug. 28, 1987 (Gong1987, 1534) 91Mo45 dated Sep. 10, 1991 (Gong1991, 2640) 93Mo33 dated May 17, 1993 (Gong1993Sang, 1432). Supreme Court Decision 84Do1139 Decided Aug. 14, 1984 (Gong1984, 1569) 85Do1275 Decided Aug. 13, 1985 (Gong1985, 1278) 93Do743 (Gong193Ha, 2193Ha, 2193) decided Jun. 22, 1993

Defendant

Defendant

Attorney Jeong Tae-sung

The High Military Court Decision 83No47 delivered on September 23, 1983

Seoul High Court Decision 89Reno2 delivered on April 28, 1993

The appeal is dismissed.

We examine the grounds of appeal.

On the first ground for appeal

1. The case where clear evidence to acknowledge innocence under Article 469 subparag. 5 of the Military Court Act and Article 420 subparag. 5 of the Criminal Procedure Act is newly discovered is not found in the litigation procedure in the finalized original judgment, or cannot be submitted or examined even if it was found, and the value of such evidence should be limited to the extent that the value of such evidence is objectively apparent compared with other evidence, and it does not refer to evidence, the value of which is determined by the judge’s free evaluation of evidence (see Supreme Court Order 91Mo45, Sept. 10, 1991).

However, the court below's decision that the above evidence Nos. 1 and 2 (certificate) submitted by the defendant cannot be a ground for retrial under Article 1 of the Act on the ground that the above evidence Nos. 1 and 2 cannot be seen as a new evidence newly discovered in an unlawful manner on the ground that the above evidence No. 1 and 2 does not objectively show the value of evidence compared to other evidence, and it cannot be seen as an official document in the process that the above document cannot be seen as an official document, but it does not affect the result of this case, and it does not affect the conclusion of the judgment of the court below, and it does not affect the conclusion of the judgment of the court below.

2. According to the records, the court below decided to commence the retrial of this case on November 1, 1991 on the ground that there are grounds for retrial under Article 420 subparagraph 2 of the Criminal Procedure Act. As such, once the court below decided to commence a retrial, the court below should re-examine the legitimacy of the judgment of the court of first instance according to the appellate court's trial procedure, and it is not necessary to determine whether there is any grounds for retrial under Article 420 subparagraph 5 of the same Act in litigation proceedings after the decision to commence a retrial

However, according to the reasoning of the judgment below, in this case where the decision on commencing a new trial has become final and conclusive, the court below made a decision as to whether the case constitutes the grounds for new trial under Article 420 subparagraph 5 of the same Act again while making a new trial according to the level of the court below, which made an unnecessary decision, and as long as the judgment of the court below on the grounds for new trial does not affect the judgment on the merits, it shall not affect the outcome of this case.

Therefore, there is no reason to discuss.

On the second ground for appeal

1. Article 469 subparag. 7 of the Military Court Act, Article 420 subparag. 7 of the Criminal Procedure Act provides that “when a military prosecutor or prosecutor, military judicial police officer, or judicial police officer, who has participated in the institution of a public prosecution or the investigation that forms the basis of the public prosecution, commits a crime relating to his/her duties, has been proved by a final judgment” as one of the grounds for retrial. This means that the existence of a mistake in facts, such as the original judgment, has been significantly inferred upon the occurrence of such occupational crime, and thus, re-examines and trials according to the trial in the first instance or the appellate trial in the first instance on the ground that the existence of a mistake in facts in the original judgment, etc. has become grounds for retrial. In such a circumstance, there may be cases where the fact-finding of the original judgment has not been maintained due to affecting the admissibility or probative value of evidence in the original judgment, but it does not necessarily mean that there

2. According to the facts acknowledged by the court below, since only the military judicial police officer who participated in the investigation, which was based on the original judgment, forced the defendant to make a confession and committing harsh acts, the suspect interrogation protocol of the defendant against the defendant should not be admissible as evidence on the grounds that it is not voluntary statement. However, on the other hand, all the evidence collected by the person concerned, such as the statement of other witnesses, etc., cannot be admitted as evidence of guilt because it is unlawful.

There is no reason for this issue.

On the third ground for appeal

1. Even if multiple occupational embezzlements constitute a single crime, if it is recognized that the legal interest of the damage is the same, and the form of the crime is identical, and that it is a series of acts due to the realization of a single criminal intent, it shall be deemed that the crime is a single crime (see Supreme Court Decision 85Do1275 delivered on August 13, 1985), and even if part of the facts charged in the relation of a single comprehensive crime is judged not guilty, it is not necessary to separately indicate it in the text of the judgment, but it is not an illegal cause affecting the conclusion of the judgment even if it is indicated in the text

2. As in the instant case, in a case where the Defendant was indicted to have sold or consumed at his own discretion by taking out the military bags, etc. kept in his own custody from the front patrolman from July 1981 to February 19, 1983 on eight occasions during the period from the front patrolman, and from the 2, Class 4 warehouses, it may be deemed that, if the damaged criminal profit is a single crime and the form of the crime is identical, and this is caused by a single criminal intent, it shall constitute a single crime. In such a case, it shall be deemed that the lower court erred in its judgment that acquitted the Defendant of the crimes listed in the [Attachment 3 to 8] of the annexed list of crimes in the indictment (2], but even if so, it shall not affect the conclusion of the judgment (see Supreme Court Decision 83Do1288 delivered on August 23, 1983).

However, if only one of the crimes listed in the list 1 and 2 of the crime committed in the first order of July 1981 is found guilty, the defendant voluntarily consumed and embezzled the defendant, and it is difficult to regard that the crime was committed in the same manner at the same place, but it is difficult to conclude that it was committed with a single criminal intent in light of the time interval of the crime. Thus, the court below's disposition which deemed the concurrent crime cannot be deemed unlawful.

In this part of the judgment of the court below, there is no error of law by misunderstanding the legal principles as to blanket crimes or concurrent crimes, and there is no reason to interpret this part.

On the fourth ground

According to the records, the court below's reasoning that found the defendant guilty of 1 to 10 crimes in the annexed list of crimes (4) at the time of the first trial against the defendant based on various evidence presented by the court of first instance except each protocol of examination of the defendant prepared by the military prosecutor and military judicial police officer, is acceptable, and there is no violation of the rules of evidence or failure to exhaust all necessary deliberations, and the court below's disposition that did not believe the witness's testimony at the court of the court below's court of first instance is not unlawful. The argument of this case is without merit.

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

Justices Kim Jong-soo (Presiding Justice)