2015Do8998 Quasi-Indecent Acts

A

Defendant

Law Firm M

Attorney 0, P, Q

Suwon District Court Decision 2015No185 Decided June 2, 2015

September 10, 2015

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

The grounds of appeal are examined.

1. In principle, where the appellate court recognizes that the grounds for appeal exist, it may determine the credibility of the testimony without re-examination of the witness examined by the first instance court. However, in light of the principle of court priority and the principle of direct examination, the first instance court’s determination on the credibility of the testimony made by the witness of the first instance in light of the contents of the first instance court and the evidence duly examined by the first instance court, or in exceptional cases where it is deemed significantly unreasonable to maintain the first instance court’s determination on the credibility of the testimony made by the witness of the first instance court in light of the results of the first instance examination and the results of additional examination conducted by the first instance court until the closing of arguments in the appellate court, the appellate court shall not reverse the first instance judgment on the grounds that the first instance court’s determination on the credibility of the testimony made by the witness of the first instance court is different from the appellate court’s determination. In particular, in cases of evidence supporting the facts charged, it is sufficient and acceptable to determine the credibility of the testimony made by the witness of the first instance court 2010 if it appears that the witness’s testimony 196.

2. According to the records, on February 25, 2014, the defendant was acquitted of the defendant for reasons such as not recognizing the credibility of the victim's statement, and the prosecutor appealedd the victim's oral testimony at the victim's investigative agency on the first trial date without examining additional evidence, such as viewing the victim's witness again questioning and failing to resist; and the court of first instance reversed the victim's statement at the victim's investigative agency on the first trial date and stated that the victim's indecent act was not actually committed but only reported with a pipe, and that the police officer was forced to answer the victim's answer without any choice but only making it appropriate for the police officer to continue to commit an indecent act. The court of first instance reversed the victim's statement at the court of first instance and rejected the judgment of first instance on the ground that the defendant's statement at the victim's investigative agency and the first instance court's statement at the court of first instance were relatively consistent with the facts charged.

However, in light of the above legal principles and records, the court below should be deemed to have clearly erred in the judgment of the court of first instance on the credibility of the victim's statement at the court of first instance in order to reverse the judgment of the court of first instance that did not recognize the credibility of the victim's statement at the court of first instance, or it should be deemed that maintaining the judgment of the court of first instance on the credibility of the victim's statement at the court of first instance after considering the results of the first instance investigation and the results of additional evidence investigation conducted until the closing of arguments at the court of first instance, and the circumstances pointed out by the court of first instance are nothing more than all the circumstances already pointed out in the investigation and the court of first instance on the basis of the statement attached to the investigation records attached to the investigation records after the examination of evidence at the court of first instance, and it is difficult to accept the judgment of the court of first instance on the credibility of the victim's statement at the court of first instance after the examination of evidence at the court of first instance.

In the end, the court below erred by violating the principle of trial-oriented and the principle of direct cross-examination in determining the credibility of the victim's statement at the court of first instance, and it is obvious that this affected the judgment. The ground of appeal pointing this out is with merit.

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 Kim Jae-sik et al.

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok