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

The grounds of appeal are examined.

1. In determining the credibility of a statement after the first instance court proceeded with the witness examination procedure in the criminal trial procedure, the credibility of the statement should be assessed by considering all the circumstances that make it difficult to record in the witness examination protocol, including the appearance and attitude of the witness who is going to make a statement in the open court after being sworn in the presence of a judge, the appearance of the witness who is going to make a statement in the open court after being sworn, and the penology 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 the credibility of the testimony of the witness of the first instance court in accordance with the spirit of the direct trial system adopted by the Korean Criminal Procedure Act, the first instance court’s judgment was clearly erroneous in the first instance court’s determination as to the credibility of the testimony of the witness of the first instance court in light of the contents of the first instance judgment and the evidence duly examined by 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 trial, or in full view of the results of the first instance examination and the results of the further examination of evidence conducted up to the closing of the appellate trial, the appellate court shall solely on the ground that the first instance judgment on the credibility of the statement made by the witness of the first instance trial is different from the appellate court’s judgment.