재심개시사유로서의 증거의 신규성과 명백성의 의미와 판단기준

Abstract

The retrial is a Complaints Procedures which change the fixed an irrevocable judgment, if the an irrevocable judgment has a significant mistake. The retrial is the most important occasion , in which remove conclusive power of judgement for the justice in case of collision between stability of law and justice. When viewed in the realistic point, The Supreme Court gives too hard guide line to the retrial. If the court operate the retrial too severe, Provision of the retrial in the Criminal Procedure actually will be meaningless. Therefore the system of retrial must be operated to have effects as Rechtsnorm reflecting expectation and requirements of reality. And the approach to the newness and clearness of the evidence must be based on the view point, the retrial has to be understood as not a simple decoration but a system to be utilized for the people. After all we could conclude as follows :1) Decision standard to the newness of evidence is enough as newness to the court, 2) In the meaning of clearness of evidence it needs not certainty beyond a resonable doubt, but belief or powers of persuasion to the judge. 3) in the decision of clearness judge must revaluate new evidence as well as old evidence synthetically.