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대구지방법원 2017.05.25 2016노3976

The defendant's appeal is dismissed.


1. Summary of grounds for appeal;

A. Although the misunderstanding E’s statement is less reliable as evidence submitted for the purpose of distributing the prize, the court below recognized the facts charged of this case based on E’s written statement, etc. In so doing, the court below erred by misapprehending the facts and affecting the conclusion of the judgment.

B. The sentence sentenced by the lower court (an amount of KRW 500,000) is too unreasonable.

2. Determination

A. 1) The appellate court under the current Criminal Procedure Act has the nature of the so-called ex post facto review based on the inner conviction, but also has the nature of ex post facto review based on considerable parts of the ex post facto core elements. Therefore, in determining the legitimacy of the judgment of the first instance in the appellate court, the characteristics of the structure of such instance should be considered.

Therefore, even though there is no new objective reason to affect the formation of a documentary evidence in the trial process, when the appellate court intends to conduct a re-evaluation of the first trial and subsequent determination ex post, there is a reasonable ground to deem that the first trial judgment was clearly erroneous, or that the argument leading to the finding of facts is considerably unfair due to the violation of logical and empirical rules, etc. Furthermore, without such exceptional circumstance, the appellate court should not reverse the first trial judgment without permission (see, e.g., Supreme Court Decisions 82Do2829, Apr. 26, 1983; 96Do2461, Dec. 6, 196). Accordingly, the appellate court’s conviction and innocence in a criminal case’s substance should be formed through a court-oriented trial; and the court’s examination based on evidence directly examined in the presence of a judge in the court-oriented trial; and the court’s examination based on the evidence duly admitted from the court-oriented trial principle to be based on the evidence directly examined in the presence of a judge (see, e.g., Supreme Court Decision 2013201Do27.