형사소송법 제420조 제5호의 재심사유에서 ‘증거의 신규성과 명백성’ (대상판결：대법원 2009. 7. 16.자 2005모 472 결정)

Abstract

This thesis is regarding the decision of the Supreme Court on 2009.7.16., 2005mo472. The decision is meaningful in including all the issues related to ‘newness’ and ‘apparentness’ under such a ground for post-conviction relief as ‘it is newly discovered evidence apparent enough to acknowledge innocence’ under sec.420.no.5. First of all, the object-mentioned decision, pursuant to precedent decisions, maintains, in terms of ‘newness of evidence’ under the section, the court-and-post-conviction-relief-petitioner standard theory which adopts such restrictive construction as to ‘newness of evidence’ by considering the recklessness and negligence in submitting evidence of the accused who places petition for a post-conviction relief. However, a court-standard theory and criticism for the court-and-post-conviction-relief-petitioner standard theory, propounded by a concurring opinion, are noteworthy in the future operation of practices to come. Next, the object-mentioned decision is significant in shifting existent holdings, which independently and isolatedly examine newly-discovered evidence as regards the range of evidence as the object of judgment in terms of deciding whether it falls on evidence so apparent to acknowledge innocence, to the restrictive assessment theory, which allows a court of a final decision to consider and assess the closely related and inconsistent things as well as newly discovered evidence among evidences for the foundation of fact-finding. However, it is expected that contents of the restrictive assessment theory will take a firm root through operating future practices as the theory itself is abstract and general. Finally, the object-mentioned decision held, as regards the level of the suspicion whether evidence is apparent enough to acknowledge innocence, “the standard where it is acknowledged that there is such high probability that a court cannot maintain the decision beyond a level of mere doubt on legitimacy of the final judgment of being guilty as the object of a post-conviction relief.” Thereby, it explained in a more concrete way a strict theory suggested by former decisions, and confirmed the fact that ‘in dubio pro reo’ principle is not applicable to the procedure deciding whether a court approves a post-conviction relief. The object-mentioned decision is expected not only to serve as a guideline for practices related to a post-conviction relief in criminal procedure, but also to provoke rigorous discussions for the overall institution of the post-conviction relief.