The prosecutor's appeal is dismissed.

1. The legal statement of E by a witness E, which is not a purchase of phiphones from the defendant, of the gist of the grounds for appeal, is not reliable in light of the statement of E investigative agency.

Comprehensively taking account of the relevant evidence such as monetary records, the facts charged of this case can be fully recognized.

Nevertheless, the lower court erred by misapprehending the facts and acquitted the Defendant.

2. Determination

A. In light of the fact that the method of evaluating the credibility of a statement made by a witness at the first instance trial and the appellate trial, and the purport of the principle of substantial direct deliberation adopted by the Korean Criminal Procedure Act, the first instance judgment was clearly erroneous in the first instance judgment as to the credibility of the statement made by the witness at the first instance trial in light of the content of the first instance judgment and the evidence duly examined by the first instance court and the evidence duly examined by the first instance court.

Unless there are extenuating circumstances to view that maintaining the first deliberation decision on the credibility of a statement made by a witness of the first instance court is significantly unfair, or in full view of the results of the first examination and the results of the further examination of evidence conducted until the closing of the appellate trial, the appellate court shall not reverse without permission the first deliberation decision on the sole ground that the first deliberation decision on the credibility of the statement made by the witness of the first instance court is different from the appellate court’s judgment.

In particular, in the case of evidence supporting the facts charged, even though the first instance court, who directly observed the witness's appearance and attitude while proceeding the witness examination procedure, judged that it is impossible to recognize the credibility of the witness's statement, the appellate court may reverse it and recognize the credibility of the witness's statement.

b. The first deliberation decision rejecting the credibility of the statement must be a case where sufficient and understandable circumstances arise, even though it is not acceptable (see Supreme Court Decision 2006Do4994, Nov. 24, 2006, etc.). E.