[1] Whether the appellate court can reverse the judgment of the first instance court on the credibility of the witness statement (negative in principle)

[2] In a case where the Defendant was indicted for violating the former Narcotics Control Act by delivering and trading a psychotropic drug camslopon to Gap, or administering it together with Gap, the case holding that the lower court erred by misapprehending the principle of court-oriented trials and the principle of direct cross-examination on the credibility of the testimony by the witness Gap of the first instance court supporting the facts charged, and thereby acquitted Gap

[1] When considering the difference between the first instance court and the appellate court's method of evaluating the credibility of a witness's statement in light of the contents of the first instance court's judgment and the evidence duly examined by the first instance court, or there are extenuating circumstances to deem that the first instance court's determination on the credibility of a witness's statement was clearly erroneous in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, or that maintaining the first instance court's determination on the credibility of a witness's statement by the time of closing argument in the appellate court is remarkably unfair, the appellate court should not reverse the first instance court's determination on the ground that the first instance court's determination on the credibility of a witness's statement by the first instance court is different from the appellate court's determination on the credibility of a witness's statement by the time of closing argument in the appellate court.

[2] In a case where the Defendant was prosecuted for violation of the former Narcotics Control Act (amended by Act No. 10786, Jun. 7, 2011) by delivering and trading psychotropic drugs Mescopon to Gap, or administering them together with Gap, the case holding that the lower court erred by misapprehending the principle of direct trial-oriented principle and direct trial-oriented principle on the credibility of Gap’s testimony by the witness of the first instance court supporting the facts charged, or by taking account of the results of the first instance court’s evidence examination and additional evidence examination conducted at the time of the closing of argument in the lower court, even though it is not clearly unreasonable to maintain the first instance court’s judgment on the credibility of Gap’s testimony in the first instance court’s statement, even though the first instance court acknowledged the credibility of Gap’s statement and did not affect the credibility of Gap’s statement on the circumstances already considered and the core points of the facts charged, and thereby acquitted Gap from the lower court.

[1] Articles 275 (1) and 308 of the Criminal Procedure Act / [2] Article 2 subparagraph 4 (b) of the former Act on the Control of Narcotics (Amended by Act No. 10786, Jun. 7, 201); Article 4 (1) (see current Article 4 (1) 1); Article 60 (1) 3 (see current Article 60 (1) 2); Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2006Do4994 Decided November 24, 2006 (Gong2007Sang, 96) Supreme Court Decision 2010Do3846 Decided June 24, 2010, Supreme Court Decision 2008Do449 Decided July 29, 2010

Defendant

Prosecutor

Seoul Southern District Court Decision 2010No2062 decided April 14, 2011

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

The grounds of appeal are examined.

1. The Korean Criminal Procedure Act adopts the principle of substantial direct examination that the establishment of conviction and innocence against the substance of a criminal case ought to be based on a trial-oriented principle, and that only the evidence directly examined in the presence of a judge can be 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 intended to enable a judge to form a new and accurate conviction through the method of directly investigating the original evidence in a court, while granting a defendant an opportunity to directly state his/her opinion concerning the original evidence, thereby enabling the discovery of substantial truth and realizing a fair trial. Accordingly, the court presiding over the criminal procedure should be able to realize the above substantial direct examination principle in the court of first instance, which is the procedure in which the parties’ allegations and evidence are examined, focusing on the progress of the criminal procedure and the trial process.

In determining the credibility of a statement after the first instance court conducted the witness examination procedure, it is necessary to evaluate the credibility of the statement considering all the circumstances that are difficult to record in the witness examination protocol, including the appearance and attitude of the witness, and the penance of the statement, which are hard to record in the open court after being sworn before a judge, as well as whether the statement itself conforms to the rationality, logic, appearance, or rule of experience, evidence or third party's statement. On the other hand, in the current Criminal Procedure Act, the appellate court's judgment on the credibility of the statement made by a witness of the first instance court under the current Criminal Procedure Act should consider only the records including the witness examination protocol in principle, so it has the intrinsic limitation that the witness's appearance and attitude at the time of making a statement that can be one of the most important elements in the judgment on the credibility of the statement can not be reflected in the credibility evaluation.

In this context, considering the difference between the first instance court and the appellate court’s method of evaluating the credibility of the statement of the first instance court in light of the contents of the first instance judgment and the evidence duly examined in the first instance court, unless there are extenuating circumstances to deem that the first instance court’s determination on the credibility of the statement of the witness of the first instance was clearly erroneous, or where it is obviously unreasonable to maintain the first instance court’s determination on the credibility of the statement of the first instance court after considering the results of the first instance examination and the results of additional evidence examination conducted by the time of closing argument in the appellate court, the appellate court should not reverse the first instance court’s determination on the grounds that the first instance court’s determination on the credibility of the statement of the first instance court is different from the appellate court’s determination (see, e.g., Supreme Court Decisions 2006Do4994, Nov. 24, 206; 2008Do4449, Jul. 29, 2010).

2. 가. 이 사건 공소사실의 요지는, 피고인이 ① 2009. 8. 중순 12:00경 서울 양천구 목동 소재 공소외 1의 집에 택배로 1회용 주사기에 들어 있는 향정신성의약품인 메스암페타민(일명 필로폰, 이하 ‘필로폰’이라고 함) 약 0.2ｇ을 무상으로 배달시켜 공소외 1에게 필로폰을 교부하고, ② 2010. 2. 초순 23:00경 대구 달서구 장기동 소재 홈플러스 앞 노상에 주차된 피고인의 차 안에서 공소외 1로부터 필로폰 3작대기 약 2.5ｇ을 100만 원에 매수하고, 바로 공소외 1과 함께 각자 필로폰 약 0.1ｇ씩을 1회용 주사기에 집어 넣고 생수로 희석한 후 각자의 팔 혈관에 주사하는 방법으로 필로폰을 투약하고, ③ 2010. 4. 중순경 공소외 2의 부탁을 받은 공소외 1로부터 필로폰을 구해 달라는 부탁을 받고 공소외 1이 공소외 2로 하여금 필로폰 매수대금 250만 원을 피고인에게 송금하자 그로부터 3일 후인 2010. 4. 중순 19:00경 대구 소재 북부정류장에서 공소외 1로 하여금 피고인이 강릉에서 버스수화물편으로 보낸 필로폰 약 8ｇ이 든 화물을 찾게 하는 방법으로 필로폰을 매매하였다는 것이다.

B. As to the above facts charged, the first instance court found the defendant guilty on the ground that the statement made by Nonindicted Party 1 was reliable through the examination of the witness against Nonindicted Party 1. On the other hand, the lower court found the defendant not guilty on the ground that the statement made by Nonindicted Party 1 was the only evidence that conforms to the facts charged in the instant case, but the evidence which was examined in the first instance court without questioning Nonindicted Party 1 as the witness again and the prosecutor’s statement adopted as additional evidence in the lower court (the first instance court, although the prosecutor’s statement made by Nonindicted Party 3 was admitted as the evidence of conviction, but the record did not examine the evidence and adopt the evidence accordingly) based on ① the statement made by Nonindicted Party 1 in the investigative agency and the first instance court was not consistent with the place of the crime in part of the facts charged or the time of the crime, ② Nonindicted Party 1 was not prosecuted as the facts charged in the instant case on behalf of informing other persons including the defendant, ③ Nonindicted Party 1 was not found on the ground that the Defendant’s urine and the s evisknoid ingredients after the arrested after the Defendant was arrestedd.

C. However, in light of the above legal principles and records, in order to reverse the first instance court's judgment recognizing the credibility of Nonindicted 1's statement in the court of first instance, which supported the facts charged in this case, the lower court should be deemed to have clearly erred in the first instance judgment in light of the contents of the first instance court's judgment and the evidence duly examined in the first instance court, or to have taken full account of the results of the first instance court's examination and additional evidence examination conducted until the closing of argument in the first instance court, and it is clearly unreasonable to maintain the first instance court's judgment on the credibility of Nonindicted 1's statement in the first instance court. The circumstances cited by the lower court are some of the circumstances already considered in the first instance court's acknowledgement of the credibility of Nonindicted 1's statement in the first instance court's statement (it seems that the contents of the prosecutor's statement of Nonindicted 3 additionally examined by the lower court are also considered in the first instance court), and it is difficult to accept the first instance court's decision on the credibility of Nonindicted 1's statement in the core facts charged in this case.

D. Therefore, the court below erred by violating the principle of court-oriented trial and the principle of direct trial when determining the credibility of the statement made by a witness of the court of first instance, and it cannot be maintained as it is, since it is obvious that this affected the judgment. The prosecutor's assertion pointing this out in the grounds of

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-young (Presiding Justice)