무고등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of two million won.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal is as follows: (a) the Defendant did not inflict any injury on D (misunderstanding of facts); (b) the punishment (an amount of three million won) sentenced by the lower court is too excessive and unfair (in determining the grounds for appeal by the Defendant’s ex officio). (c) Before the judgment on the grounds for appeal by the Defendant’s ex officio, if a person who committed an act without accusation makes a confession or surrenders himself/herself before the judgment on the grounds for appeal by the lower court rendered a false fact becomes final and conclusive, the sentence shall be mitigated or exempted (Article 157, Article 153 of the Criminal Act). According to the records, the Defendant was not prosecuted; and (d) the Defendant acknowledged the fact that he made a confession against D without accusation at the trial by the lower court; and (e) the lower court should be determined after the necessary reduction or exemption of the sentence against the Defendant pursuant to Articles 157 and 153 of the Criminal Act. In this regard, the lower judgment is no longer maintained.
However, despite the above reasons for reversal of authority, the defendant's assertion of mistake is still subject to the judgment of this court, and this is examined.
3. In light of the content of the first instance judgment as to the assertion of mistake of facts and the evidence duly examined by the first instance court, the first instance judgment as to the credibility of the statement made by the first instance witness was clearly erroneous in the determination.
Unless there are extenuating circumstances to see the credibility of the statement made by a witness of the first instance trial and the result of an additional examination of evidence by the time the appellate trial is final and conclusive, the appellate court should not reverse without permission the first instance judgment on the ground that the first instance judgment on the credibility of the statement made by a witness of the first instance trial is different from the appellate court’s judgment (see, e.g., Supreme Court Decisions 2006Do494, Nov. 24, 2006; 2017Do7871, Mar. 29, 2018).