The prosecutor's appeal is dismissed.

1. The decision of the court below that found the defendant not guilty on the ground that the defendant committed an indecent act against the victim under the influence of alcohol is erroneous in the misapprehension of the legal principles as to the grounds for appeal.

2. Determination

A. Considering the difference between the first instance court and the appellate court’s method of evaluating credibility in accordance with the spirit of substantial direct deliberation adopted by the Korean Criminal Procedure Act, the first instance judgment on the credibility of the statement made by the first instance court was clearly erroneous in light of the content of the first instance judgment and the evidence duly examined by the first instance court.

Unless there are extenuating circumstances to view that maintaining the first deliberation decision on the credibility of a statement made by a witness of the first instance court is significantly unfair, or in full view of the results of the first examination and the results of the further examination of evidence conducted until the closing of the appellate trial, the appellate court shall not reverse without permission the first deliberation decision on the sole ground that the first deliberation decision on the credibility of the statement made by the witness of the first instance court is different from the appellate court’s judgment.

In particular, in the case of evidence supporting the facts charged, although the first instance court, which directly observed the appearance and attitude of the witness who directly observe the witness's statement while proceeding the witness examination procedure, finds it impossible to recognize the credibility of the witness's statement, the appellate court may reverse it and recognize the credibility of the witness's statement.

In order to determine the credibility of the statement, the first deliberation judgment rejecting the credibility of the statement must be the case where there are sufficient and understandable circumstances (Supreme Court Decision 2009Do14466 Decided May 13, 2010). (b) In addition to the circumstances acknowledged by the evidence duly adopted and investigated by the court below, E observed the indecent act by the defendant.

(b) argument;