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Defendant
All appeals filed by A and the prosecutor against the Defendants are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant A (unfair sentencing)’s punishment (a year of imprisonment, additional collection of KRW 100,00) is too unreasonable.
B. According to the evidence submitted by the prosecutor (misunderstanding of facts), the court below acquitted Defendant A, among the facts charged, on July 2016, which found the Defendants not guilty of the charge, on the charge of administering a phiphone and the charge of receiving a phiphone on March 27, 2017, which found the Defendants guilty of the charge. In so determining, the court below erred by misapprehending the legal principles.
2. Determination
A. In a criminal trial as to the prosecutor’s assertion of mistake of facts, the recognition of facts ought to be based on strict evidence with probative value, which makes the judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent to have the aforementioned convictions, the determination should be made in the interests of the defendant even if there is doubt of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal, etc. (Supreme Court Decision 2010Do1487 Decided April 28, 201). Meanwhile, in light of the contents of the first instance judgment and the evidence duly examined in the first instance court, the first instance judgment on the credibility of the statement made by the witness of the first instance court was clearly erroneous, in view of the contents of the first instance judgment and the evidence duly examined in 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, the witness examination procedure will proceed with the witness examination procedure.