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The prosecutor's appeal is dismissed.
Reasons
1. In full view of the evidence showing the grounds for appeal, that if the defendant makes an investment in the money exchange business as shown in the facts charged, he/she will pay profits, etc.
It may be recognized that 300 million won has been stolen by deceiving the damaged person.
Nevertheless, the court below which acquitted the defendant on the ground that there is no evidence to prove this.
2. Determination
A. In a criminal trial, the finding of guilt ought to be based on evidence of probative value, which can lead a judge to feel true beyond a reasonable doubt, and in the absence of any evidence establishing such a degree of conviction, even if there is suspicion of guilt against the defendant (see, e.g., Supreme Court Decision 2013Do4172, Jun. 27, 2013).
B. The 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 in the court, and adopts a substantial direct trial principle that only the evidence directly examined in the presence of a judge can be based on the trial, and the original evidence near the facts subject to proof should be based on the trial, and the use of a substitute for the original evidence should not be permitted in principle. Thus, in light of the contents of the first instance judgment and the evidence duly examined in the first instance trial, the first instance judgment on the credibility of the statement made by a witness in the first instance was clearly erroneous.
Except in exceptional cases where it is deemed significantly unfair to maintain the first instance judgment on the credibility of the statement made by the witness of the first instance court, in full view of the results of the first instance examination and the results of the further examination of evidence conducted until the closing of the appellate trial proceedings, the appellate court shall have the credibility of the statement made by the witness of the first instance court.