C’s respective statements in the investigation agency and the court below’s decision are not consistent with C’s purchase price of the penphone that C purchased from the Defendant; C was absent at the six times or the examination date of the witness examination without any justifiable reason; G and I stated in the court below that C did not have any whistle-phones for the Defendant; G and I stated in the court below that C and I did not have any whistle-phones for the Defendant; and L with the witness L of the court below also stated in the purport that C had no whistle-phones for the Defendant; although there is no credibility, the court below found the Defendant guilty on the basis of only the fact, such as the witness C’s legal statement without credibility.

2. Determination

A. In light of the spirit of the principle of substantial direct examination adopted by the Korean Criminal Procedure Act, unless there are special circumstances to deem that the first instance judgment on the credibility of the statement made by a witness of the first instance was clearly erroneous, or the first instance judgment on the credibility of the statement made by a witness of the first instance is clearly unreasonable in light of the results of the first instance examination and the results of the additional examination of evidence conducted by the time the argument in the appellate trial is concluded, the appellate court should respect the judgment on the credibility of the statement made by the witness of the first instance.

(see, e.g., Supreme Court Decision 2011Do5313, Jun. 14, 2012).

The court below acknowledged the credibility of the testimony of the witness C of the court below and considered the other circumstances. The court below, after having finished the examination procedure of the witness C, directly conducted the examination of the evidence, stated the reasons in detail in the "decision on the argument of the accused and the defense counsel".