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The judgment below
The part against the defendant shall be reversed.
Defendant shall be punished by a fine of five million won.
The defendant above.
Reasons
1. Summary of grounds for appeal;
A. The Defendant, in collusion with A, merely lent only the name of business registration to Defendant A, and did not submit a false list of total tax invoices by seller and seller in collusion with Defendant A.
B. The lower court’s sentence against an unfair defendant in sentencing (an amount of KRW 10 million) is too unreasonable.
2. Determination
A. As to the assertion of mistake of facts, Korean Criminal Procedure Act adopts the principle of public trial-oriented principle that the formation of a conviction or innocence against the substance of a criminal case ought to be based on a trial-oriented principle, the evidence directly examined in the presence of a judge can only be used as the basis of a trial and the original evidence near the facts to be proved should be used as the basis of a trial-oriented principle, and the use of a substitute for the original evidence should not be permitted in principle. This is because a judge can form a new and accurate conviction for a case by directly investigating the original evidence in a court, and can realize a fair trial by providing a defendant with an opportunity to directly state his/her opinion on the original evidence.
Meanwhile, in determining the credibility of a statement after the witness examination procedure was conducted in the first instance trial, the credibility of the statement should be assessed by considering all the circumstances that are difficult to record in the witness examination protocol, such as the witness appearance, attitude, and penology in the open court after being sworn in the presence of a judge as well as whether the content of the statement itself conforms to the rationality, logic, inconsistency, or rule of experience, or conforms to physical evidence or third party’s statement.
On the other hand, the appellate court's judgment on the credibility of the statement made by the witness at the first instance court under the current Criminal Procedure Act is in principle a witness examination protocol.