사기
The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. In determining the credibility of a statement after the first instance court proceeded with the witness examination procedure in the criminal trial procedure, the credibility of the statement should be assessed in consideration of all the circumstances that are difficult to record in the witness examination protocol, including the witness appearance, attitude and attitude of the witness who is going to make a statement in the open court after being sworn before a judge as well as whether the content of the statement itself conforms to the rationality, logic, and empirical rule, evidence or third party’s statement, and whether it conforms to evidence or third party’s statement.
On the other hand, the appellate court's determination of credibility of the statement made by the witness of the first instance court under the current Criminal Procedure Act is based on the records including the witness examination protocol in principle, so it has an essential limitation that the appearance and attitude of the witness at the time of the statement that can be considered one of the most important elements in determining credibility of the statement can not be reflected in the evaluation of credibility.
In light of the difference between the first instance court and the appellate court’s method of evaluating credibility of the statement of the witness at the first instance trial, the first instance court’s determination on the credibility of the statement made by the witness at the first instance trial is clearly erroneous in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, or the first instance court’s determination on the credibility of the statement made by the witness at the first instance trial is clearly erroneous in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, or it is clearly unreasonable to maintain the first instance court’s determination on the credibility of the statement made by the witness at the first instance court until the closing of arguments in the appellate