Appellants

Daejeon High Court Decision 93No137 delivered on July 30, 1993

The motion for retrial of this case is dismissed.

1. Basic facts

According to the records, the following facts are recognized.

A. The applicant for a retrial (hereinafter referred to as the "applicant") was sentenced to a suspended sentence of 1:0 on September 23:10, 1992 by driving a car in the south (vehicle number omitted) city with a blood alcohol concentration of 0.11% at around 0.1%, and had the victim charged with the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "the victim charged with the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, 3:00 square meters at intervals of 50 kilometers per hour while driving the car in the front part of the above passenger car at around 23:0,00, and driving the car in the south (vehicle number omitted) under the influence of 0.11%, and had the victim charged with the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, 3:00 square meters at the front part of the above passenger vehicle without being charged with the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the number omitted).

B. The appellant appealed against the above judgment. On July 30, 1993, the Daejeon High Court ( Case number omitted) which is the appellate court accepted part of the appellant’s appeal and reversed the judgment of the court below and convicted the appellant of the above facts charged, but sentenced the appellant to suspended sentence (the suspended sentence: 6 months of imprisonment).

C. The appellant appealed against the above judgment, but the Supreme Court dismissed the appellant's appeal on February 8, 1994, and the above appellate judgment became final and conclusive as it is.

2. The claimant's assertion;

The reasons for the request for retrial of this case are as shown in the annexed sheet of reasons for retrial, and a summary of the main contents is as follows.

First, according to the above traffic accident, Nonindicted 4 and Nonindicted 5 arrested the claimant as an offender after the traffic accident, and Nonindicted 6 and Nonindicted 7, etc. belonging to the Police Station of the Police Station of the Police Station of the Police Station of the Police Station of the Police Station of the Police Station, who was handed over the claimant’s personal service from Nonindicted 5, were unlawfully confined by the claimant and listen to only the statement of the victim

Second, Nonindicted 4, Nonindicted 2, Nonindicted 1, and Nonindicted 3, on board the damaged vans, have the claimant be hospitalized or issued a medical certificate to the hospital by taking advantage of the status of the assistant principal of an elementary school, and the requester paid money upon requesting the witness Nonindicted 5 to make a false statement.

Third, Nonindicted 4 or Nonindicted 1, when being investigated by the prosecution, did not have a circumstance in which the claimant intentionally escaped from the accident, and at the time, the petitioner tried to make a statement that he was under the influence of alcohol and was in the state of mental disorder, but the chief of the prosecution at that time prevented him from making any such statement by threatening Nonindicted 4, etc.

Fourth, Nonindicted 14, who issued a medical certificate to Nonindicted 2 and Nonindicted 3, issued a medical certificate, was a person who engaged in illegal medical treatment without permission, and issued a medical certificate by false means without any proper medical treatment to Nonindicted 2, etc.

3. Determination

A. As stated in Article 420 subparagraph 1 through 7 of the Criminal Procedure Act, the reason for filing a request for a retrial with respect to a final judgment of conviction is as follows: (1) When evidence or evidence in the original judgment has been proved to have been forged or altered by the final judgment; (2) when testimony, appraisal, interpretation, or translation of evidence in the original judgment has been proved to have been forged or altered by the final judgment; (3) when the offense of false accusation has been proved by another final judgment; (4) when the judgment admitted into evidence in the original judgment has been proved by another final judgment; (5) when evidence has been altered by the final judgment; (5) when evidence is newly discovered that the person who was pronounced guilty has been acquitted or acquitted; and (6) when evidence which proves that the offense committed with respect to a case which was pronounced guilty due to a crime infringing on copyright, patent right, utility model right, design right, or trademark right, and when the final judgment, the original judgment, or judgment, or judgment, or the judgment has become final and conclusive; and (7) when the public prosecutor or senior judicial police officer was involved in the criminal prosecution or investigation.

B. First, according to the first argument, the claimant submitted a written complaint to the prosecution by asserting that he was subject to illegal confinement in the process of being investigated by Nonindicted 8 of the police station in the process of being investigated by the chief of the police station, the chief of the guard station belonging to the above police station, Nonindicted 7, etc. on October 2, 1994, as stated in the above facts charged, and the prosecutor submitted a written complaint to the prosecution. As a result of the investigation on the above case, it is found that Nonindicted 7 obtained and executed a detention warrant from a judge 24 hours after the period for requesting the warrant under the Criminal Procedure Act was about 24 hours. However, it is justifiable for both the above court to recognize the facts that Nonindicted 7 caused mistake in the existing business practice and caused the above illegal confinement to Nonindicted 7, and that there is no evidence to deem that the claimant was aware of the illegal confinement to Nonindicted 8, and that Nonindicted 8, the claimant was dismissed on March 2, 199.

As above, since the prosecution suspended the prosecution against the non-indicted 7 and the court recognized the suspension of indictment to be justifiable, the above suspension of indictment and the court's decision constitutes "proving evidence in lieu of the final judgment" as prescribed in Article 422 of the Criminal Procedure Act, and it can be a question as to whether the grounds for retrial under Article 420 subparagraph 7 of the Criminal Procedure Act, "when it is proved by a final judgment that a prosecutor or senior judicial police officer involved in the institution of a public prosecution or investigation based on the indictment committed an offense related to his duties" have been satisfied. However, the above suspension of indictment is merely a procedural issue that the period for filing a request for detention warrant has expired several times in the course of investigation, and it is not related to the substantive relation of the case, such as forcing the petitioner or witness to make a false statement in connection with the investigation duties, or falsely manipulating and distorted the case, and the record also shows that the police officer, who was directly investigating the claimant, meets the above grounds for retrial as a supervisor of the above police officer's duty and thus, cannot be seen as satisfying the grounds for retrial as the above.

C. On the second and the fourth arguments, each of the above arguments appears to be related to subparagraph 1 (when it is proved that documents or evidence of the original judgment has been forged or altered by a final judgment), or subparagraph 4 (when the judgment of the original court has been altered by a final and conclusive judgment) and subparagraph 5 (when evident evidence to acknowledge innocence or acquittal has been newly discovered) among the grounds for retrial, and subparagraph 5 (when evidence to prove innocence or acquittal has been newly discovered against a person who was sentenced to a crime of oil), and there is no evidence to prove that there was "final and conclusive judgment" to prove the contents of the claimant's assertion, and only on the basis of the fact confirmation or copy of the document or record appended by the claimant, it cannot be deemed that the requirements of "when clear evidence to acknowledge innocence is newly discovered against a person who was sentenced to a crime of oil" as stipulated in subparagraph

D. In the instant case where there is no evidence to acknowledge that the prosecutorial commander who investigated the health team, Nonindicted 4, or Nonindicted 1 committed a crime in connection with his duties and received a final and conclusive judgment, the said assertion also cannot be deemed to constitute grounds for retrial under subparagraph 7. Therefore, the said assertion is without merit.

E. There is no evidence to acknowledge that the content of the above other arguments does not correspond to the grounds for retrial under Article 420 subparag. 1 through 7 of the Criminal Procedure Act, or that the requirements, such as “a final and conclusive judgment,” which is required by the grounds for retrial, are satisfied, with respect to any other grounds alleged by the claimant in the grounds for retrial. All of

4. Conclusion

Therefore, the petitioner's request for retrial of this case is dismissed in accordance with Article 434 (1) of the Criminal Procedure Act, since there is no reason to do so.

Judges Cho Jae-chul (Presiding Judge)