Part  V Retrial

Article 420(Motion for Retrial for Interests of the Convicted (I))
After a guilty judgment has become final, a motion for retrial may be filed for interests of the convicted under the following circumstances:
1. Where exhibits on which the original judgment is based have been proven fabricated, or altered;
2. Where material testimony, expert opinion, or interpretation on which the original judgment is based has been proven false;
3. Where the convicted has been proven maliciously accused.
4. Where judgment by a common court or special court on which the original judgment is based on has been changed in a final judgment;
5. If a judge participating in the original judgment, judgment before the trial or investigations before the judgment, or prosecutor participating in the investigation or the prosecution commits offenses in his/her post out of the case and the offenses have been proved; or he/she neglect the duties out of the case and has been “administrative punished” but the behaviors are sufficient to affect the original judgment.
6. Where the discovery of new evidence is sufficient to show that the convicted shall be acquitted, exempt from prosecution, remitted the punishment, or sentenced an offense less serious than the one in the original judgment.
Under the manifestation of situations of Paragraphs 1 to 3 and Paragraph 5, after the judgment is final, a motion for retrial can be filed if insufficient evidence is not the reason for not able to begin the criminal procedure or continue the trial.

Article 421(Motion for Retrial for Interests of the Convicted (II))
Expect stipulated in the previous article, once a guilty judgment in the second instance is final, if the failed to consider of material evidence may affect the judgment, a motion for retrial may be filed against cases which may not appeal the court of third instance.

Article 422(Motion for Retrial against Interests of the Convicted)
Once judgment of guilty, not guilty, exempt from prosecution, or case dismissed is final, a motion for retrial can be filed contrary to the interest of the convicted under the following circumstances:
1. Where there are situations as specified in subparagraph 1, 2, 4 or 5 of Article 420;
2. For a person receiving a judgment of not guilty, or punishment lighter than the offense he/she commits, if through the person's confession during or outside the litigation procedure or through the discovery of new evidence, it is sufficient to render a judgment of guilty and heavier punishments;
3. Where a person is exempt from prosecution or dismissed from the suit, if through such person’s statement during or outside the litigation procedure or through the discovery of new evidence, it is sufficient to hold that there is no ground to exempt his/her original judgment.

Article 423(Period of Motion for Retrial (I))
The motion of retrial may be filed after the punishment has been completed; it may also be filed if the punishment or during the time punishment is not being executed.

Article 424(Period of Motion for Retrial (II))
Motion for retrial due to the failed to consider of material evidence pursuant to Article 421 may be filed within 20 days since the judgment is served.

Article 425(Period of Motion for Retrial (III))
Once the judgment if final, if more than one-half of the period specified in Paragraph 1 of Article 80 of the Criminal Code has lapsed, a motion for retrial against interests of the convicted may not be filed.

Article 426(Competent Court for Retrial)
The original trial court has the jurisdiction on a motion for retrial.
Where some parts of the judgment have been appealed and others have not, the court of second instance has jurisdiction over a motion for retrial on any parts of the judgment, if the court of second instance pronounces a ruling that a retrial shall be rendered for the parts that have been final in the appellate trial. The court of second instance also has jurisdiction over the motion for retrial of that part of the judgment which has become final in the court of first instance.
Once a judgment is final in the third instance, the court of second instance has the jurisdiction over a motion for retrial on such a judgment, unless the judges in the court of third instance have situations specified in Subparagraph 5 of Article 420.

Article 427(Right to File a Motion for Retrial (I) – for Interests of the Convicted)
Motion for retrial for interests of the convicted may be filed by the following persons:
1. A prosecutor in the competent court;
2. The convicted;
3. The statutory agent or spouse of the convicted;
4. The spouse, lineal blood relatives, collateral blood relatives, relatives by marriage within the second degree of relationship, family head or family members of the convicted, where the convicted is deceased.

Article 428(Right to File a Motion for Retrial (II) – against Interests of the Convicted)
A prosecutor of the competent court or a private prosecutor may file a motion for retrial against interests of the convicted; provided that a private prosecutor may only file such a motion in circumstances under Subparagraph 1 of Article 422.
Where a private prosecutor loses the legal capacity or dies, a person has the right to file a private prosecution pursuant to Paragraph 1 of Article 319 may file a motion in the preceding paragraph.

Article 429(Motion for Retrial)
A motion for retrial shall be submitted to the competent court along with the reasons set forth on the writing, copies of the original judgment and evidence.

Article 430(Effect of the Motion for Retrial)
A motion of retrial does not suspend the execution of punishment; provided that a prosecutor of the competent court may order a suspension before the ruling on the motion.

Article 431(Withdraw a Motion for Retrial and its Effect)
A motion for retrial may be withdrawn before the retrial judgment.
A person who withdraws a motion for retrial may not use the same reason to file a motion for retrial.

Article 432(Apply mutatis mutandis Articles regarding Appeal Withdrawal)
Articles 358 and 360 shall apply mutatis mutandis to a motion for retrial or withdrawal.

Article 433(Ruling for an Illegal Motion – Overrule by Ruling)
A court shall overrule by ruling upon finding a motion for retrial “in contravention of procedure.”

Article 434(Ruling for a Meritless Motion – Overrule by Ruling)
A court shall overrule by ruling a meritless motion for retrial.
After a ruling in the preceding paragraph, one may not use the same reason to file a motion for retrial.

Article 435(Ruling for a Meritorious Motion – Ruling for Retrial)
The court shall pronounce a ruling for retrial if the motion is meritorious.
The court may rule to suspend the punishment after the ruling in the preceding paragraph.
An interlocutory appeal may be filed against the ruling in Paragraph 1 within 3 days.

Article 436(Retrial)
The court shall set a case for trial on regular procedure if the ruling for retrial is final.

Article 437(Exceptions to Oral Hearing (IV))
Where a convicted dies, a motion for retrial for interests of the convicted may be judged without oral argument, after the prosecutor or private prosecutor express his/her opinion in writing. Where a private prosecutor loses legal capacity or dies, a person who may undertake the litigation pursuant to Article 332 may file a motion to the court to undertake the litigation in 1 month; if no one undertakes the litigation or such period lapses, the court may immediately give a judgment on the case or notify the prosecutor to express the opinion.
Where a convicted dies before the retrial, a motion for retrial for interests of the convicted shall apply mutatis mutandis the preceding paragraph.
Judgments in the preceding two paragraphs may not be appealed.

Article 438(End of Retrial)
A motion for retrial against interests of the convicted and such motion and ruling will lose the effect be invalid if the convicted dies before the judgment of retrial.

Article 439(Principle of the Prohibiting Alteration for Interests (II))
Where a motion for retrial filed for interests of the convicted and a judgment of guilty is pronounced, the court may not pronounce a sentence heavier than the one in the original judgment.

Article 440(Publication of a Not Guilty Judgment in the Retrial)
Where a motion for retrial for interests of the convicted is pronounced a judgment of not guilty, the court shall publish the judgment in public journals or other newspapers.