The purport of the principle of substantial direct examination adopted by the Criminal Procedure Act as an element of the principle of public trial-oriented trial, and measures to be taken by the court to realize such principle / The difference between the first instance court and the appellate court’s evaluation methods for the credibility of a witness’s statement / Whether the appellate court may reverse the judgment of the first instance court on the credibility of a witness’s statement (negative in principle)

The Criminal Procedure Act adopts the principle of substantial direct examination as an element that the formation of conviction and innocence against the substance of a criminal case ought to be deliberated in the court. This is because a judge may form accurate convictions on the case through the method of directly examining original evidence in the court and may realize a fair trial by providing the accused with an opportunity to directly state his/her opinion regarding original evidence. In light of the foregoing, with a focus on the process of criminal proceedings and the hearing, the court of first instance, which is the principle of direct examination in which the parties’ allegations and evidence are conducted, should ensure that the mind of the principle of substantial direct examination is sufficiently realized. When the first instance court examines the credibility of the witness’s statement after the examination of the witness, the determination of credibility of the witness’s statement accords with the rationality, logic, and inconsistency with the rule of experience, or other evidence, it is difficult to determine credibility of the witness’s statement at the appellate court’s first instance court’s first instance judgment based on the evidence examination’s reasoning and evidence examination’s conclusion that it is clearly difficult to obtain credibility or credibility, including the evidence examination’s statement at the same time.

Articles 275(1) and 308 of the Criminal Act

Supreme Court Decision 2006Do4994 Decided November 24, 2006 (Gong2007Sang, 96) Supreme Court Decision 2008Do7917 Decided January 30, 2009 (Gong2011Do5313 Decided June 14, 2012) (Gong2012Ha, 1250)

Defendant

Defendant

Law Firm Sejong, Attorneys Park Byung-il et al.

Suwon District Court Decision 2018No3606 decided October 19, 2018

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. The Criminal Procedure Act adopts the principle of substantial direct examination as an element of the principle of public trial, that the formation of conviction and innocence against the substance of a criminal case ought to be deliberated in the court. This is because the judge may form accurate convictions on the case through the method of directly examining the original evidence in the court and may realize a fair trial by providing the accused with an opportunity to directly state his/her opinion concerning the original evidence. The court should ensure that the spirit of the principle of substantial direct examination is sufficiently realized in the court of first instance, which is the principle of the parties’ assertion and examination of evidence, focusing on the court in the process of criminal proceedings and the process of the examination. In light of the first instance court’s first instance court’s determination on the credibility of the witness’s statement after the examination of the witness, the determination on the credibility of the witness’s statement conforms to the rationality, logic, and morality of the statement itself or rule of experience, or whether the witness’s statement conforms to other evidence in the appellate court’s statement at the time of the examination of evidence, the court’s first instance court’s determination on the credibility and credibility of the witness statement is clearly different from the evidence examination.

2. A. The summary of the facts charged in this case is as follows.

The Defendant, as an internal director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), had Nonindicted Co. 20 hold 2,400 shares of 40,00 shares of the said Co. 2; Nonindicted Co. 2 held 17,60 shares of 44%. Nonindicted Co. 1 did not have resolved to hold a general meeting of shareholders on August 25, 2016; Nonindicted Co. 2 opposed to the Defendant’s demand for subscription to new shares on August 25, 2016 or early September 9, 2016. Nevertheless, Nonindicted Co. 2 had Nonindicted Co. 3 submit the aforementioned written consent of Nonindicted Co. 1 to Nonindicted Co. 3 for the period of 80,000 common shares issued at KRW 5,00,000, and Nonindicted Co. 2, who did not know of the said written consent of Nonindicted Co. 1, 205, which was subject to the Defendant’s offering of new shares, issued the said written consent.

B. On August 31, 2016, the Defendant, from the investigative agency to the lower court’s trial, consented to Nonindicted 2’s implementation of the procedure for capital increase with respect to the instant case at a meeting (hereinafter “instant meeting”) in which Nonindicted 5, Nonindicted 8, etc. agreed to receive some of the shares held by the Defendant, Nonindicted 2, and Nonindicted 2, etc. were to be transferred, without their own participation. According to such agreement, Nonindicted 3 had Nonindicted 3 take the procedure for capital increase with respect to capital increase and completed the procedure for capital increase, and completed registration of change in the commercial register. As such, the Defendant asserted that each of the instant documents were not forged or written false facts in the commercial register.

The first instance court examined the above non-indicted 5 and non-indicted 8. The second instance court accepted the above non-indicted 5 and non-indicted 8’s offering of new shares without the participation of Non-indicted 2 after the meeting of this case. Accordingly, the non-indicted 5 transferred the subscription price to the new shares without the participation of Non-indicted 2. At the time of the meeting of this case, the defendant alleged that he should offer new shares as the company’s situation is difficult, and considering the company’s circumstances, it is difficult to deem that the defendant consented to the non-indicted 2’s offering of new shares until the time when he prepares funds without the deadline or set amount, the evidence submitted by the prosecutor alone was insufficient to recognize that the defendant had intentionally committed each crime listed in the facts charged, and sentenced the defendant not guilty.

However, the court below reversed the judgment of the court of first instance and sentenced the defendant guilty on the basis of the evidence which was examined by the court of first instance without further examining evidence. The reasons are as follows.

(1) At the time of the instant meeting, Nonindicted 2 did not explicitly express any intent until the end of the meeting. Nonindicted 5 and Nonindicted 8 stated to the effect that “Nonindicted 2 did not participate in this case’s capital increase with capital increase, and understood that there was a conclusion that he would have participated in the next capital increase with capital increase,” but this is merely a mere conjecture.

(2) Any signature is not entered in a document related to the issuance of new shares in the name of Nonindicted 2, and only the Defendant is present at the meeting minutes of the general meeting of shareholders, and Nonindicted 2 is excluded.

(3) If the Defendant asserts, Nonindicted 3 did not give any instruction, and Nonindicted 3 prepared a written waiver of the subscription of new shares and a written consent for the reduction of the period in the name of Nonindicted 2, which is difficult to obtain. It appears that the Defendant continued to offer new shares to Nonindicted 3, but Nonindicted 2 gave up the subscription of new shares, which led to Nonindicted 3’s refusal to do so.

(4) Despite the fact that the Defendant worked in both Nonindicted 2 and Nonindicted 1’s head office, he did not directly sign by Nonindicted 2 or did not have the intention to prepare each of the documents of this case.

(5) Although there was a change in the ratio of the shareholder structure due to the capital increase with consideration in the instant case, Nonindicted 2’s influence on Nonindicted Company 1 would significantly decrease, there is no reasonable ground for Nonindicted 2 to assume such disadvantage.

3. A. We examine the propriety of the lower judgment based on the circumstances known by the aforementioned legal principles and records.

(1) From July 2016 to August 8, 2016, the Defendant offered capital increase to Nonindicted 2, 2016. The reason was that Nonindicted 2’s capital increase was insufficient for the first time from September 15, 2016, and Nonindicted 2 opposed to the capital increase. On the other hand, Nonindicted 2 opened the instant meeting on August 31, 2016. The Defendant presented accounting data stating the details of the funds to be disbursed on September 6, 2016 and explained the shortage of funds to the investors. On the other hand, Nonindicted 2 did not assert that Nonindicted 3 would not have any capital increase without compensation, and that Nonindicted 2 would not immediately participate in the procedure for capital increase. On the other hand, the Defendant asserted that he would have been able to participate in the procedure for capital increase to Nonindicted 2, 2016, on the ground that he would have sold more than 6 capital increase to the investors at the first time, and that he would not participate in the procedure for capital increase.

(2) 공소외 5, 공소외 8은 제1심법정에서 ‘이 사건 회의에서 공소외 2가 동의 내지 반대 의사를 명시적으로 밝히지는 않았지만, 피고인의 위와 같은 제안에 대하여 공소외 2가 동의한 것으로 이해하였다’는 취지로 진술하고 있다(제1심 공판기록 93~95, 98~99, 103~104, 106면 등). 공소외 5는 피고인의 위 제안에 대하여 공소외 2가 동의하여 바로 유상증자 절차가 진행되는 것으로 인식하고, 회의 직후 공소외 1 회사 명의 계좌에 신주인수대금 1,000만 원을 송금하였다. 공소외 2는 2015. 11. 10.경 자신이 보유하는 공소외 1 회사 주식 중 7%를 공소외 8에게, 1%를 공소외 5에게 각 양도하기로 구두 약정하였으나 이를 이행하지 않고 있었는데 이 사건 회의 후 2016. 9. 2. 공소외 8, 공소외 5에게 주식양수도계약서를 작성하여 교부하여 주었다(제1심 공판기록 104면). 이와 관련하여 피고인은 이 사건 회의 다음 날인 2016. 9. 1. 공소외 2에게 “부사장님 주식 중 7%, 1% 관련해서 양수도계약서를 만들어 놨습니다. 혹시라도 틀린 점이 있다면 회신 주세요. 이번에 법무사와 세무사 비용이 지출되는 건이라 진행할 때 같이 한 번에 진행하는 것이 좋을 것 같습니다. 나중에 진행하면 또 비용에 대한 문제가 생깁니다.”라는 내용의 이메일을 보냈는데(증거기록 제2권 148면), 이에 대하여 공소외 2는 아무런 이의를 제기하지 않았다. 이러한 사정에 비추어 보면, 원심이 이 사건 각 문서의 작성에 관하여 피고인에게 위조의 고의가 있었다고 본 것은 제1심 증거조사 결과와 부합하지 않는다.

(3) While Nonindicted 2 worked with the Defendant at the head office of Nonindicted Company 1, the lower court reasoned as the grounds for conviction that there was no signature of Nonindicted 2 in the documents regarding the issuance of new shares, including each of the instant documents, and that some of the documents, including the instant documents, are affixed with the seal of the door door door, which appears to have been arbitrarily new by the certified judicial scrivener. However, in light of the fact that Nonindicted 5’s employee at the time of the offering of new shares by issuing new shares, the subscription form, and the subscription certificate, in the name of Nonindicted 4, Nonindicted 6, and Nonindicted 7, as well as the subscription form, and the subscription form, and the subscription certificate, in the name of Nonindicted 4, Nonindicted 6, and Nonindicted 7, are affixed with the seal without their signature, there is no ground to readily conclude that the Defendant arbitrarily prepared each of the instant documents even without the consent of Nonindicted 2

B. As seen earlier, in order to reverse the judgment of the first instance court that recognized the credibility and value of evidence of Nonindicted 5 and Nonindicted 8’s testimony in the first instance court, there are considerable and reasonable circumstances to understand them. However, the circumstances presented by the lower court are not special or reasonable to the extent that the first instance court directly observe the witness examination procedure with respect to Nonindicted 5 and Nonindicted 8, while proceeding with the witness examination procedure with respect to Nonindicted 8, 200, and recognized the credibility and value of evidence of the statement. Nevertheless, the lower court, without any additional examination of evidence, merely simply concealed the statement of Nonindicted 5 and Nonindicted 8 in the first instance court without any value of evidence, and thus, the lower court erred by misapprehending the legal doctrine on substantial direct cross-examination and by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The Defendant’s allegation in the grounds of appeal assigning this error is with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)