What Reopens a Final Conviction? The Novelty and Clarity of New Evidence and Proof of Official Misconduct as a Ground for Retrial

Question

A retrial in a criminal trial is an extraordinary remedy procedure that reopens the fact-finding of an already final and conclusive judgment of conviction. Article 420 of the Criminal Procedure Act provides that a retrial may be claimed for the benefit of the person who received the sentence against a final and conclusive judgment of guilty, and enumerates seven grounds. In major cases, the grounds actually contested are mainly two. Subparagraph 5 concerns the case where clear evidence to find the defendant not guilty, to dismiss the charges, to grant exemption from punishment, or to find a crime lighter than the crime recognized in the original judgment has been newly discovered; and subparagraph 7 concerns the case where it is proved by a final and conclusive judgment that a judge who participated in the original judgment or the judgment of the prior instance, or in the investigation that formed the basis thereof, or a prosecutor or judicial police officer who participated in the institution of public prosecution or in the investigation that formed the basis thereof, committed an offense in connection with his or her duties.

The two grounds differ in their subject of proof. Subparagraph 5 asks how far the new evidence shakes the evidentiary relationships of the original judgment, whereas subparagraph 7 requires proof by a final and conclusive judgment of a separate fact, namely an offense in connection with the duties of a judge or an investigative agency. Article 422 of the same Act permits a retrial to be claimed by proving that fact where such a final and conclusive judgment cannot be obtained, but makes an exception where the final and conclusive judgment cannot be obtained on the ground that there is no evidence. In old cases, or in cases where the statutes then in force themselves excluded the warrant requirement, this method of proof determines the outcome.

This article divides its inquiry into four questions. First, whether new evidence need only be new to the court, or must also be new to the person claiming the retrial. Second, whether the requirement that the evidence be clear is assessed by isolating the new evidence alone, or together with the existing evidence used in the original judgment, and, if viewed together, up to what scope. Third, how to read subparagraph 7 and Article 422 in cases of warrantless arrest or detention under unconstitutional statutes, or where no final and conclusive judgment of an offense in connection with official duties can be obtained. Fourth, whether a judgment of dismissal of charges or a judgment whose written decision has not been found can be the subject of a retrial.

This article organizes the branches of the legal principle within the range stated by the Holdings and the Summary of Decision of three Supreme Court decisions. It is not an article that determines the possibility of a retrial in a particular case or recommends the filing of a claim. Where the wording of the provision at the time of the decision differs from that of the current provision, the difference is indicated, and each decision is read on the basis of the statutes in force at that time.

Material to check

First, the current wording of Article 420 of the Criminal Procedure Act can be checked. This Article was wholly amended on 8 December 2020. Subparagraph 7 as cited in the 2018 decision (2015Mo3243) used the older phrasing "the investigation which was the basis of the judgment" and "has committed a crime in connection with his or her duties", whereas the current wording reads "the investigation that formed the basis of the judgment" and "has committed an offence in connection with his or her duties". The proviso to current subparagraph 7 limits the ground, where a public prosecution was instituted against the judge, prosecutor or judicial police officer before the original judgment was pronounced, to cases where the court of the original judgment was unaware of that ground. Whether the wholesale amendment affected the substance of the requirements is a point to be checked together with the reasons for the amendment.

Second, the provisions defining the subject and the scope of the grounds of retrial. Article 421(1) provides that a request for retrial against a judgment dismissing an appeal or a final appeal may be made only where there is a ground under Article 420, subparagraph 1, 2 or 7. Article 326 provides that a myeonso judgment (a judgment terminating the prosecution without a decision on the merits) shall be pronounced where there has been a final and conclusive judgment, where an amnesty has been granted, where the statute of limitations for public prosecution has expired, or where the punishment has been abolished by the amendment or repeal of laws after the commission of the crime. Whether a myeonso judgment can be the subject of retrial is a question that requires reading these two provisions together with the words "a final and conclusive judgment of conviction" in the main text of Article 420.

Third, the structure of Article 422. Where proof of a crime by a final and conclusive judgment is relied upon as the ground for a request for retrial under Articles 420 and 421 and such a final and conclusive judgment cannot be obtained, a request for retrial may be made by proving that fact; the proviso excludes cases where the final and conclusive judgment cannot be obtained for lack of evidence. The dissenting opinion in decision 2015Mo2229 gives the expiry of the statute of limitations for public prosecution as an example of a case in which proof by another method in place of a final and conclusive judgment is permitted. The provision does not itself specify what kind of proof suffices to have "proved that fact".

Fourth, the provisions on the procedure for commencing retrial. Where it is clear that a request for retrial violates the legal formalities or is made after the right to request has been extinguished, it shall be dismissed by decision (Article 433); where it is found to be without grounds, it shall likewise be dismissed by decision, in which case no person may again request retrial on the same grounds (Article 434). Where it is found to be well founded, a decision to commence retrial shall be made, and the execution of the sentence may be suspended by decision (Article 435); a case for which the decision to commence retrial has become final shall, except in the cases under Article 436, be tried anew according to its instance (Article 438(1)). Also to be checked are Article 37(3), under which facts may be examined where necessary when making a decision, and Article 415, which permits an immediate appeal to the Supreme Court against a decision of an appellate court or a High Court only on the ground of a violation of the Constitution, an Act, an order or a rule that affected the decision.

Fifth, persons entitled to request retrial and suspension of execution. Article 424 designates as persons entitled to request retrial the prosecutor, the person sentenced for conviction, that person's legal representative, and, where the person sentenced for conviction has died or has a mental disability, that person's spouse, lineal relatives and siblings. The current text carries a notation that on 24 June 2026 the Constitutional Court held nonconforming to the Constitution the part of subparagraph 4 of that Article concerning cases of death, insofar as it applies to the incidents prescribed in Article 2(1), subparagraphs 3 and 4 of the former Framework Act on Clearing up Past Incidents for Truth and Reconciliation, and ordered its continued application until it is amended, with 31 December 2027 as the deadline. Article 428 was wholly amended on 4 August 2026 and provides that a request for retrial does not have the effect of suspending the execution of the sentence, but that a prosecutor of the Prosecution Service office or branch office at each level corresponding to the court having jurisdiction may suspend the execution of the sentence until a decision is rendered on the request for retrial.

Sixth, the relevant provisions of the Constitution and the Criminal Act. Article 12(3) of the Constitution requires that, when arrest, detention, seizure or search is carried out, a warrant issued by a judge upon the request of a prosecutor in accordance with due process of law be presented, and permits an ex post request in cases such as that of a person caught in the act. Article 27(1) provides for the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act. Article 124(1) of the Criminal Act punishes a person who performs, or assists in, judicial, prosecutorial, police or other duties relating to the physical restraint of persons and who, by abusing his or her authority, arrests or confines another person; the current text carries a notation of amendment on 29 September 2026. Since the referenced provisions of decision 2015Mo2229 pair Article 194 of the former Criminal Act, repealed upon the enactment of the Criminal Act in 1953, with the current Article 124, the penal provision in force at the time of the act must be checked separately.

Possible readings

As to the novelty of the new evidence, there are two branches of reading. One branch is the court-based standard. Because Article 420 (5) does not restrict by whom the evidence must be newly discovered, this reading holds it sufficient if the evidence is that which the court examining the commencement of the retrial has newly come to know. The other branch adds the claimant-based standard. Insofar as a retrial is a procedure that exceptionally breaks the legal stability of a final and conclusive judgment, this reading holds that, if evidence which the claimant could have submitted in the original judgment proceedings but failed to submit through negligence is also treated as new evidence, the result is that the claimant chooses the timing of the submission of evidence. In the 2005Mo472 en banc decision, the majority opinion took the latter reading, while the separate opinion took the former.

The scope of the evaluation of clarity also diverges. There is an isolated evaluation, which looks at whether a finding of not guilty can be made on the evidentiary value of the new evidence alone, detached from other evidence; a limited comprehensive evaluation, which views together only those among the evidence used in the original judgment that are organically and closely related to and inconsistent with the new evidence; and a full comprehensive evaluation, which views together all existing evidence admitted by the original judgment in its fact-finding. The majority opinion of the same decision rejected isolated evaluation and adopted limited comprehensive evaluation, while the separate opinion took the position that the scope should not be limited. Under any reading, the work of unfolding again the list of evidence of the original judgment and marking one by one its relationship with the new evidence is required first.

As to the ground of an offense in connection with official duties under subparagraph 7, a reading faithful to the text and a reading by analogy contend with each other. The reading faithful to the text holds that warrantless arrest or detention under the statutes then in force is difficult to evaluate as an offense in connection with official duties straightaway. The reading by analogy holds that, if the statute itself that excluded the warrant requirement is unconstitutional, the arrest or detention is consequently one that violates the constitutional warrant requirement, and the resulting infringement of fundamental rights is no different from the case of an offense in connection with official duties, so that it must be regarded as analogous to the grounds for retrial under subparagraph 7. The 2015Mo3243 decision, while recognizing the foregoing circumstances, adopted the latter conclusion.

The degree of proof in lieu of a final and conclusive judgment under Article 422 is also subject to diverging interpretations. One reading holds that the fact-finding at the stage of a retrial claim need not follow the strict method of evidence examination of trial proceedings, and that a finding may be formed on circumstantial evidence as well, so that the fact of unlawful arrest and confinement may be recognized by combining the results of investigations by state agencies and the records of the time. The other reading holds that the proof must reach the degree that can take the place of a final and conclusive judgment, that is, an affirmative degree leaving no room for reasonable doubt, and that the circumstance that evidence has been lost or destroyed over a long period does not lower the degree of proof. The majority opinion and the dissenting opinion of the 2015Mo2229 en banc decision diverged at this point.

As to the scope of judgments subject to retrial, there are two questions. One is the kind of judgment. The holding of the 2015Mo3243 decision is that a judgment of dismissal of charges is not a final and conclusive judgment of guilty and therefore is not subject to a retrial. The other is what proves the existence of the judgment. The majority opinion and the dissenting opinion of the 2015Mo2229 decision were divided between the reading that, even where the written judgment has not been found, the pronouncement and finality of the judgment may be recognized by other materials, and the reading that the possibility that the entries in those other materials are themselves false and the independence among the materials must be strictly examined.

All three decisions explicitly address the tension between the legal stability guarded by the finality of judgments and the concrete justice of correcting grave defects in final and conclusive judgments. Which side is given weight is left as a matter for the reader to determine after comparing the records of the original judgment with the new materials in each case. This article does not assert the propriety of any particular retrial claim, and stops at dividing the branches of interpretation and the points of comparison.

What the decisions held

Supreme Court Decision 2005Mo472 en banc decided July 16, 2009 construed the phrase "when evidence has been newly discovered" in Article 420 (5) as meaning the time when evidence that was not discoverable in the litigation proceedings of the final and conclusive judgment subject to retrial, or that could not be submitted even if discovered, has been newly discovered or has become submittable for the first time. The majority opinion stated: "Where the defendant claims a retrial, if he or she is at fault in failing to submit such evidence during the litigation proceedings of the final and conclusive judgment subject to retrial, it is proper to construe that such evidence is excluded from the case of 'when evidence has been newly discovered' in the foregoing provision." As to clarity, it stated that "among the evidence on which the court that pronounced the final and conclusive judgment subject to retrial based its fact-finding, those which are organically and closely related to and inconsistent with the newly discovered evidence must be considered and evaluated together," and that, if a high degree of probability is recognized such that the final and conclusive judgment can no longer be maintained as it is, the evidence constitutes clear evidence. In a case where the results of a semen test conducted after the finalization of the original judgment were asserted as new evidence, while pointing out that there was error in the examination and judgment of the court below, the Court held that the evidence did not constitute clear evidence to find the defendant not guilty even when the relevant evidence was viewed together, and dismissed the reappeal.

Supreme Court Decision 2015Mo3243 decided May 2, 2018 stated that a retrial is permitted only against a final and conclusive judgment of guilty and a final and conclusive judgment dismissing an appeal or a final appeal against a judgment of conviction, and held that "a judgment of dismissal of charges cannot be regarded as a final and conclusive judgment of guilty, and therefore a retrial claim targeting a judgment of dismissal of charges is unlawful." It went on to recognize that warrantless arrest or detention under an unconstitutional statute that excludes the warrant requirement is difficult to evaluate as an offense in connection with official duties straightaway, yet held that, if the statute itself is unconstitutional, a final and conclusive judgment of guilty based on that investigation bears a grave defect of the same kind as the case of committing the crime of illegal arrest and confinement under Article 124 of the Criminal Act. As its conclusion, it determined that "where an investigative agency has made a warrantless arrest or detention pursuant to an unconstitutional statute that excludes the warrant requirement, a ground for retrial under Article 420 (7) of the Criminal Procedure Act must be found to exist, by viewing the case as analogous to one in which the official-duty crime of illegal arrest and confinement is recognized," and explained that such application by analogy is a constitution-conforming interpretation that guarantees the right to be tried under the Constitution. The disposition dismissed all reappeals.

Supreme Court Decision 2015Mo2229 en banc decided March 21, 2019, in a retrial claimed by the bereaved families of defendants who, at the time of the "Yeosun Incident," were referred to a court-martial on charges of rebellion and disruption of state power, were sentenced to death, and were executed, dismissed the prosecutor's reappeal against the commencement decision for retrial. The majority opinion, applying mutatis mutandis the provisions on final appeals to the reappeal proceedings, holding that a finding may be formed on circumstantial evidence as well, that the court receiving the retrial claim may investigate facts where necessary and is not bound to follow the strict method of evidence examination of trial proceedings, and other matters, found the determination of the court below under Articles 422 and 420 (7) — which recognized that the military and police had illegally arrested and confined the defendants without the issuance of a warrant of detention — to be justifiable. As to the fact that the written judgment had not been found, it stated that "the existence of a judgment and the existence of a written judgment are distinct," and that even where the judgment is void by operation of law for reasons of unconstitutionality or illegality, "once it has been formed, its formal finality is recognized, and it should rather be regarded as capable of being the subject of a retrial in order to correct such a grave state of unconstitutionality and illegality." The dissenting opinion held that the fact of an offense in connection with official duties must be affirmatively proved to the degree of leaving no room for reasonable doubt, and that the circumstance that a long period has elapsed does not relax the degree of proof.

Practical checklist

This item is not advice but a bundle of questions that may be asked when comparing records. First, one may ask about novelty. One may organize by point of time whether the new evidence existed at the time of the litigation proceedings of the original judgment, whether, if it existed, the claimant could have known of its existence, and, if known, what the circumstances were for not submitting it. According to the majority opinion in the 2005Mo472 decision, whether there was fault in failing to submit determines novelty, so the materials showing accessibility at that time become central.

Second, one may ask about clarity. One may make a list of the evidence on which the original judgment based its fact-finding, mark the evidence that is organically and closely related to or inconsistent with the new evidence, and then compare whether a high degree of probability arises such that the original judgment can no longer be maintained as it is when those pieces of evidence are viewed together. The question itself differs from the method of asking whether not guilty is proved by the new evidence alone.

Third, one may ask about subparagraph 7 and Article 422. One may distinguish whether there is a final and conclusive judgment concerning an offense in connection with official duties by a judge, prosecutor or judicial police officer; if not, what the reason is for being unable to obtain the final and conclusive judgment; and whether that reason is that there is no evidence. One may also confirm on what statute the arrest and detention at the time was based, whether that statute had the content of excluding the warrant requirement, and whether its unconstitutionality has been confirmed.

Fourth, one may ask about the subject and the persons entitled to claim. One may confirm whether the subject of the retrial is a final and conclusive judgment of guilty or another final disposition such as a dismissal of charges and, if it is a judgment dismissing an appeal or final appeal, whether it falls under the grounds permitted by Article 421 (1). If there is no written judgment, one may organize other documents showing the pronouncement, finality and execution of the judgment and the persons who prepared them, and confirm whether the claimant is a person entitled to claim under Article 424 and whether the notation of nonconformity with the Constitution attached to the same Article applies. It is no more than a list of materials to check, and the reader draws the conclusion.

Glossary

A decision to commence retrial is a decision made by the court where it finds a request for retrial to be well founded (Article 435(1) of the Criminal Procedure Act). Once the decision to commence retrial becomes final, the court shall, except in the cases under Article 436, try the case anew according to its instance (Article 438(1)). The determination at the stage of the request for retrial and the new trial are different stages, and the three decisions discussed in this brief all concern the former stage.

Novelty and clarity are the terms used for the two requirements into which "where clear evidence has been newly discovered" under Article 420, subparagraph 5 is divided. Novelty refers to whether the evidence is new, and clarity to whether the evidence is clear enough to establish acquittal or the like.

Proof in place of a final and conclusive judgment is the method prescribed by Article 422: where proof of a crime by a final and conclusive judgment is relied upon as the ground for a request for retrial and that final and conclusive judgment cannot be obtained, the fact is proved directly. Cases where the final and conclusive judgment cannot be obtained for lack of evidence are excluded.

A myeonso judgment is a judgment pronounced where there has been a final and conclusive judgment, where an amnesty has been granted, where the statute of limitations for public prosecution has expired, or where the punishment has been abolished by the amendment or repeal of laws after the commission of the crime (Article 326). Decision 2015Mo3243 held that a myeonso judgment is not a final and conclusive judgment of conviction and therefore is not subject to retrial.

Sources and limitations

The sources for the provisions are the current texts on the National Law Information Center. Articles 37, 326, 415, 420, 421, 422, 424, 428, 433, 434, 435 and 438 of the Criminal Procedure Act (effective 2 October 2026, Act No. 22009), Article 124 of the Criminal Act (effective 2 October 2026, Act No. 22007), and Articles 12 and 27 of the Constitution of the Republic of Korea were checked on 16 October 2026.

The sources for the decisions are the Holdings, Summary of Decision and Disposition of Supreme Court decisions 2005Mo472, 2015Mo3243 and 2015Mo2229 as published on the National Law Information Center. As for the full text of decision 2015Mo2229, the original text checked for this brief extends only to the middle of the dissenting opinion on the second issue, so the arguments of the dissenting opinion beyond that point are not addressed in this brief. Facts that do not appear in the Holdings and Summary of Decision have not been used.

The provisions of the Founding Constitution, the former Criminal Act, the former Criminal Procedure Act and the Framework Act on Clearing up Past Incidents for Truth and Reconciliation, which the decisions list as referenced provisions, were not checked against their original texts for this brief; only the citations of the referenced provisions have been reproduced. Points at which the laws in force at the time of the act need to be checked separately are marked in the text.

Points left open

A remaining question is how far the analogical application in decision 2015Mo3243 extends beyond arrest and detention under laws that excluded the warrant requirement. The Summary of Decision does not directly say whether the same reasoning applies to investigations conducted under unconstitutional laws that excluded guarantees of other procedural fundamental rights.

It also remains to be determined how to distinguish "where the final and conclusive judgment cannot be obtained for lack of evidence" under the proviso to Article 422 from cases where proof has become difficult because evidence has been lost over the passage of many years. The majority and dissenting opinions in decision 2015Mo2229 reached different conclusions on this point on the same record.

There is also room to clarify the standard by which the petitioner's negligence is assessed in determining novelty. The issue is by what materials it is to be determined whether the circumstances that prevented submission lay outside the petitioner's sphere, such as investigation records to which the petitioner then had no access or the level of forensic technology at the time.

Matters to be checked hereafter also include how amending legislation, following the notation of the decision of nonconformity to the Constitution attached to Article 424, subparagraph 4 of the Criminal Procedure Act, will define the range of persons entitled to request retrial, and how the provision on suspension of execution in Article 428, wholly amended on 4 August 2026, will operate in practice.

When to reconsider

This brief will be rewritten if Article 420, 422 or 424 of the Criminal Procedure Act is amended, or if the Supreme Court issues a new determination on the novelty and clarity of new evidence or on the scope of analogical application of subparagraph 7. Legislation around 31 December 2027, the deadline for amending Article 424, subparagraph 4, is also a condition for revisiting.

At that point, the method of proof at the stage of commencing retrial and the range of judgments subject to retrial will be restated within the scope of what the Holdings and Summary of Decision in the original texts say.

Statutes referred to

• 형사소송법 제37조, 제326조, 제415조, 제420조, 제421조, 제422조, 제424조, 제428조, 제433조, 제434조, 제435조, 제438조
• 형법 제124조
• 대한민국헌법 제12조, 제27조

Decisions referred to

• 대법원 2009. 7. 16. 자 2005모472 전원합의체 결정 · Decision ledger
• 대법원 2018. 5. 2. 자 2015모3243 결정 · Decision ledger
• 대법원 2019. 3. 21. 자 2015모2229 전원합의체 결정 · Decision ledger

Verification status

The cited provisions (Articles 37, 326, 415, 420, 421, 422, 424, 428, 433, 434, 435 and 438 of the Criminal Procedure Act, Article 124 of the Criminal Act, and Articles 12 and 27 of the Constitution of the Republic of Korea) were checked against the current texts on the National Law Information Center on 16 October 2026. The cited decisions (Supreme Court 2005Mo472, 2015Mo3243 and 2015Mo2229) were checked against the Holdings, Summary of Decision and Disposition in the original texts on the National Law Information Center. As for the full text of 2015Mo2229, the text checked ends midway through the dissenting opinion on the second issue, so the remainder lies outside the scope of verification.