[1] Whether the appellate court may reverse the first instance court's determination on the credibility of the statement made by the witness of the first instance court (negative in principle)

[2] The case holding that the first instance court's decision rejecting the credibility of the witness's statement in support of the facts charged that an indecent act by compulsion was committed and the court below erred in the misapprehension of legal principles as to the substantial principle of direct examination and the principle of trial of evidence

[1] Article 308 of the Criminal Procedure Act / [2] Article 156 of the Criminal Act, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2006Do4994 Decided November 24, 2006 (Gong2007Sang, 96) Supreme Court Decision 2009Do14035 Decided February 11, 2010, Supreme Court Decision 2009Do14065 Decided March 25, 2010 (Gong2010Sang, 844)

Defendant

Defendant

Attorney Kim Go-su

Seoul Northern District Court Decision 2009No1262 Decided December 8, 2009

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

The grounds of appeal are examined.

1. In light of the difference between the first instance court and the appellate court’s method of evaluating credibility according to the spirit of substantial direct examination adopted by the Korean Criminal Procedure Act, the appellate court shall not reverse the first instance court’s determination on the credibility of a witness’s statement in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, unless there exist special circumstances to deem that the first instance court clearly erred in its determination on the credibility of a witness’s statement in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, or where it is highly unreasonable to maintain the first instance court’s determination on the credibility of a witness’s statement in light of the results of the first instance court’s examination and the results of additional evidence examination by the time of closing argument at the appellate court, solely on the ground that the first instance court’s determination on the credibility of a witness’s statement in the first instance court is different from the appellate court’s determination. In particular, in a case of evidence supporting the facts charged, it is sufficient and acceptable to reject the first instance court’s determination on the credibility of a witness’s statement (see 106.

2. The record reveals the following circumstances.

The summary of the facts charged of this case is that the defendant submitted to the police officer a letter of complaint stating that, although the defendant did not have any indecent act by force from the non-indicted 1 for the purpose of having the non-indicted 1 subject to criminal punishment, the non-indicted 1 did not want to access the case on January 1, 2009 by promising the defendant to take advantage of his hand on his own car and induce his human being to a rare place, and committing an indecent act against the defendant's will, such as forcing the defendant to take off his sexual organ against his will, which led to an indecent act by force against his will. Thus, the defendant failed to report it to the non-indicted 1. However, since the defendant did not voluntarily put his hand into the front stage of the investigation, the non-indicted 1's hand in his own will by attracting his hand, and the non-indicted 1 did not report it to the court below that he did not report it to the court below's wrong indecent act by force.

On the contrary, Non-Indicted 1 stated that he appeared as a witness of the investigation agency and the first instance trial, and that he had committed the same act as the facts charged, but at the time, Non-Indicted 2, who was in charge of the instant case in the said district at the time, wanted to be punished by sexual intercourse with Non-Indicted 1 by entering the district first in the state of interest of the defendant in the court of first instance and being forced to make a indecent act by force from Non-Indicted 1, while hearing the defendant and Non-Indicted 1's assertion, he demanded that Non-Indicted 1 drive a drinking test.

The first instance court, which directly conducted the examination of the witness, was insufficient to recognize that the defendant was able to have his/her sexual organ by inserting his/her fingers into the tra bargaining clothes of Nonindicted Party 1 only with the evidence submitted by the prosecutor, and there is no other evidence to prove otherwise, and therefore, it cannot be concluded that the contents of the defendant's criminal complaint are false. In addition, if the defendant actively did not have his/her sexual organ, and Nonindicted Party 1 decided that he/she was able to have his/her fingers against his/her own will, and if he/she was able to bring his/her hand in with the defendant on his/her part, he/she could think that the defendant was able to have the sexual organ of Nonindicted Party 1 against his/her own will, and it is difficult to recognize the defendant's intention on the basis of such facts, and thus, it is difficult to find the defendant guilty.

However, without additional evidence, the lower court closed the pleading immediately on the first trial date, and then closed the pleading, which corresponds to the facts charged in the instant case. In full view of Nonindicted Party 1’s motive and circumstance on board Nonindicted Party 1’s car, and the circumstances leading up to the measurement of alcohol level as above, the lower court reversed the judgment of the first instance court that deemed that the credibility was recognized in Nonindicted Party 1’s legal statement, and convicted the Defendant.

In light of the above facts in light of the legal principles as seen earlier, in order to reverse the first instance court’s decision rejecting the credibility of Nonindicted 1’s testimony in the court of first instance supporting the facts charged, such judgment of the court of first instance ought to be acceptable and sufficient and reasonable. However, the circumstances pointed out by the court below are not only some of the various circumstances already considered in the first instance court’s rejection of the credibility of Nonindicted 1’s testimony in the court of first instance, and it is difficult to accept the measures of the court of first instance following the first instance’s decision on the credibility of the statement made by Nonindicted 1 in the court of first instance, because the circumstances pointed out by the court of first instance were the circumstances already pointed out in the process of investigation and examination of evidence in the process of investigation and the first instance court based on the results of examination of evidence in the court of first instance.

Ultimately, the court below erred in the misapprehension of legal principles as to the evidence judgment principle that the court below violated the principle of substantial direct examination in determining the credibility of statements made by a witness of the court of first instance, and as a result, criminal facts should be proved to the extent that there is no reasonable doubt, and it is obvious that this affected the judgment. The ground of appeal containing the purport of pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)