The defendant's appeal is dismissed.

1. The judgment of the court below which found the defendant guilty on the ground of the victim's statement that the defendant did not commit an indecent act against the victim is erroneous in the misapprehension of legal principle.

2. Determination

A. In determining the credibility of a statement after the first instance court initially proceeded with the witness examination procedure, not only is it consistent with the rationality, logic, inconsistency, or rule of experience of the content of the statement itself, but also is consistent with the witness evidence or third party’s statement in the open court after taking an oath before a judge, but also the witness’s appearance, attitude, and penance of the statement that is difficult to record in the witness examination protocol, such as the witness’s appearance, attitude, and penance of the statement, should be considered to assess the credibility of the statement.

On the other hand, the appellate court's determination of credibility of the statement made by the witness in the first instance court under the current Criminal Procedure Act is based on the records including the witness examination protocol in principle. Thus, in determining credibility of the statement, there is an essential limitation that the appearance and attitude of the witness at the time of the statement that can be called one of the most important elements in determining credibility of the statement can not be reflected in the evaluation of credibility.

Considering the difference between the first instance court and the appellate court’s method of evaluating credibility in accordance with the spirit of the principle of substantial direct deliberation as seen earlier, the first instance judgment was clearly erroneous in its determination as to the credibility of the statement made by the first instance court witness in light of the content of the first instance judgment and the evidence duly examined in the first instance court.

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 be deemed to be an appellate court.