강제추행
The prosecutor's appeal is dismissed.
1. In light of the prosecutor’s summary of the grounds for appeal, the victim E’s statement is consistent with the damage situations; the victim E’s statement is reversed without accurately memory on the specific date of the indecent act; however, the contents of the indecent act are considerably and specifically memoryed; there was a fact that he/she sought advice from L around July 2015 by speaking the Defendant’s indecent act; and the defendant’s change in the circumstance where he/she became her mother with E is an exceptional and it is difficult to believe, etc., the E’s statement is credibility.
Nevertheless, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment by rejecting the credibility of the E’s statement and determining not guilty of the facts charged in this case.
2. When considering the difference between the original court and the appellate court based on the spirit of the principle of substantial direct examination adopted by the Korean Criminal Procedure Act as an element of the trial-oriented principle, the lower court’s determination on the credibility of the statement made by the witness in the original instance is clearly erroneous in light of the contents of the lower judgment and the evidence duly examined by the court below, or there are exceptional circumstances where it is deemed that maintaining the lower court’s determination on the credibility of the statement made by the witness in the original instance is considerably unreasonable in full view of the evidence examination results and the evidence duly examined by the court below, and the additional evidence examination results by the time of closing argument in the appellate court, the appellate court should not reverse the lower court’s determination on the ground that the lower court’s determination on the credibility of the statement made by the witness in the original instance differs from the appellate court’s determination (see, e.g., Supreme Court Decisions 2011Do5313, Jun. 14, 2012; 208Do4449, Jul. 29, 20106).