[1] The purpose of the substantial direct examination principle adopted by the Criminal Procedure Act as an element of the trial-oriented principle, and the measures to be taken by the court

[2] The case where the appellate court can reverse the first instance court's judgment denying the credibility of the witness's statement

[3] The case holding that the judgment of the court of first instance on the credibility of the witness's statement is erroneous in violating the rules of evidence by violating the principle of court-oriented trials and the principle of direct hearing

[1] The Criminal Procedure Act of Korea adopts the substantial direct examination principle that the formation of conviction and innocence against the substance of a criminal case must be based on a trial-oriented principle that is that only the evidence directly examined in the presence of a judge can be used as the basis of a trial and the original evidence near the facts to be proved should be based on the trial and that the use of the substitute for the original evidence should not be permitted in principle. This is because a judge can form a new and accurate conviction through the method of directly investigating original evidence in a court, and the defendant may be given an opportunity to directly state his/her opinion on the original evidence, thereby finding substantial truth and realizing a fair trial. A court presiding the criminal procedure shall be able to realize the aforementioned substantial direct examination principle in the first instance court, which is the principle procedure in which the parties’ allegations and evidence are examined, focusing on the criminal procedure and the trial process.

[2] In light of the contents of the judgment of the court of first instance and the evidence duly examined in the court of first instance, if there are special circumstances to deem that the judgment of the court of first instance on the credibility of the statement made by a witness of the court of first instance was clearly erroneous, or if it is deemed that maintaining the judgment of the court of first instance on the credibility of the statement made by a witness of the court of first instance is considerably unfair considering the results of the first instance and the results of additional evidence examination conducted by the time the arguments are concluded, the appellate court shall not reverse without permission the judgment of the court of first instance solely on the ground that the judgment of the court of first instance on the credibility of the statement made by the witness of the court of first instance is different from that of the appellate court. In particular, in the case of evidence supporting the facts charged, even though the court of first instance, which directly observed the witness's appearance and attitude in the statement in the process of examination, is deemed impossible to recognize the credibility of the statement made by the witness, if the appellate court later intends to determine the credibility of the statement, it shall be sufficient and obvious.

[3] The case holding that the judgment of the court of first instance on the credibility of the witness's statement is erroneous in violating the rules of evidence by violating the principle of court-oriented trials and the principle of direct hearing

[1] Articles 275(1) and 308 of the Criminal Procedure Act / [2] Article 308 of the Criminal Procedure Act / [3] Article 308 of the Criminal Procedure Act

[2] Supreme Court Decision 91Do1672 delivered on October 22, 1991 (Gong1991, 2871), Supreme Court Decision 94Do1545 delivered on November 25, 1994 (Gong1995Sang, 139), Supreme Court Decision 96Do2461 delivered on December 6, 1996 (Gong197Sang, 279), Supreme Court Decision 2005Do130 delivered on May 26, 2005 (Gong2005Ha, 1088)

Defendant

Defendant

Gangnam General Law Firm, Attorney Lee Gi-soo

Seoul Western District Court Decision 2005No1303 Decided July 4, 2006

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. Our Criminal Procedure Act adopts the principle of substantial direct examination that the formation of conviction and innocence against the substance of a criminal case shall be based on a trial-oriented principle, which is that only the evidence directly examined in the presence of a judge may be the basis of a trial and the original evidence near the facts to be proved shall be based on the trial, and the use of the substitute for the original evidence shall not be permitted in principle. This is because a judge may form a new and accurate conviction through the method of directly investigating original evidence in a court, and the defendant may be given an opportunity to directly state his/her opinion on the original evidence, thereby finding substantial truth and realizing a fair trial. The court presiding over the criminal procedure shall be able to realize the above substantial direct examination principle in the court of first instance, which is the principle procedure in which the parties’ allegations and evidence are examined, focusing on the criminal procedure and the trial process.

In determining the credibility of a witness’s statement after the first instance court conducted the witness examination procedure, the first instance court, as well as whether the content itself conforms to the rationality, logic, appearance or rule of experience, physical evidence or third party’s statement, and whether the witness’s appearance, attitude, and appearance of the witness who is in the open court after being sworn before a judge is considered to be hard to record in the witness examination protocol, and the witness examination protocol, i.e., the appearance and appearance of the witness who is in the open court after being sworn. Furthermore, the appellate court’s determination on the credibility of the witness’s statement made by the first instance court under the current Criminal Procedure Act is based on only the record including the witness examination protocol, and thus, the appellate court’s determination on the credibility of the witness’s statement made by the second instance court, i.e., the first instance court’s determination on the credibility of the witness’s statement made by the second instance court, i.e., the first instance court’s determination on the credibility of the witness examination conducted by the second instance court, 20.

In particular, in the case of evidence supporting the facts charged, even though 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, judged that the credibility of the witness's statement cannot be acknowledged, if the appellate court intends to determine that the credibility of the witness's statement can be acknowledged, the first instance court's decision rejecting the credibility of the witness's statement should be sufficient and acceptable.

According to the records, the following circumstances are revealed.

The summary of the facts charged of this case is that the defendant has forged or exercised the Promissory Notes and the power of attorney by affixing his seal impression on April 2004, which was possessed by the defendant in an irregular manner. However, the defendant consistently asserted that the defendant had affixed his seal impression on the Promissory Notes and the power of attorney in blank to the effect that Nonindicted 1, the complainant, visited the defendant's office at the time and at the time stated in the facts charged, visited the defendant's office and affixed his own seal impression

On the contrary, in line with this, Nonindicted 1 and Nonindicted 2 consistently after the complaint, alleged that Nonindicted 1 jointly and severally guaranteed the Defendant’s obligation on the date and time indicated in the facts charged, as well as the fact that Nonindicted 2 visited the Defendant’s office or left his seal imprint to Nonindicted 2. The first instance court stated to the same effect that the witness was present at the court. However, the first instance court, which completed the examination of the witness on the Promissory Notes and the power of attorney, deemed that it is difficult to believe that the two parties’ statements are difficult to believe, and acquitted the Defendant.

The court below, however, ordered the defendant to examine some documents submitted by the defendant at the court below as to the circumstances related to whether the non-indicted 1's joint and several surety was jointly and severally guaranteed, but the documents submitted by the defendant were attached to the investigation records, and most of the documents were attached to the investigation records, and the circumstances that were already pointed out in the investigation and the first instance trial process based on the loan-related documents attached to the investigation records which have been examined by the court of first instance, i.e., the non-indicted 1's signature and seal on the column for joint and several surety of the loan-related documents of this case, and the defendant did not obtain the certificate of the non-indicted 1's personal seal impression, based on the fact that the non-indicted 1's non-indicted 1's non-indicted

Examining the facts in light of the aforementioned legal principles, in order to reverse the first instance court’s decision rejecting the credibility of Nonindicted 1 and 2’s statement in the court of first instance in support of the facts charged, the court below should be sufficient and reasonable to accept the first instance court’s decision, and the circumstances pointed out by the court below are merely some of the various circumstances already considered in the first instance court’s rejection of the credibility of Nonindicted 1 and 2’s statement in the court of first instance, and it is difficult to accept the first instance court’s decision following the first instance court’s decision on the credibility of the statement made by Nonindicted 1 and 2 in the court of first instance on the basis of the loan-related documents attached to the investigation records that were examined by the court of first instance in the process of investigation and the first instance court’s decision.

Ultimately, the court below erred in violation of the rules of evidence by violating the principle of court-oriented trial and the principle of direct trial when judging the credibility of the statement made by a witness of the court of first instance, and it cannot be maintained as it is because it has influenced the judgment.

2. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)