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 time when evidence which was not discovered or could not be submitted or examined in the final judgment subject to retrial, and the value of such evidence is newly discovered, submitted or examined that the final judgment is objectively superior to other evidence based on fact-finding data, and the evidence which has already been presented to the court of final judgment does not constitute such evidence.

Article 420 subparagraph 5 of the Criminal Procedure Act

Supreme Court Order 84Mo23 Dated June 14, 1984

Re-appellant

Seoul High Court Order 83Ra6 dated April 20, 1984

The reappeal is dismissed.

The grounds of reappeal are examined.

1. The term "when clear evidence is newly discovered" as provided in Article 420 subparagraph 5 of the Criminal Procedure Act refers to the time when evidence which was not discovered in the litigation procedures of the final judgment subject to retrial or could not be submitted or examined even if it was discovered, and the value of such evidence is recognized as objectively superior to other evidence that the final judgment is based on fact-finding data, and the submission or examination can be made. Therefore, the court below is just in rejecting the request for retrial on the ground that the evidence that the applicant for a retrial has already been discovered and judged to be presented to the court of final judgment, and there is no illegality in the misapprehension of the legal principles.

2. The issues discussed are erroneous in the judgment subject to retrial on the ground that there was an error of misunderstanding of facts due to violation of evidence collection, and that the amount of punishment is excessive, and thus, the judgment of the court below is dismissed on the ground that there is no ground for retrial as above, and thus, it cannot be a legitimate ground for reappeal against the order of the court below.

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

Justices Yoon Il-young (Presiding Justice)