If an appellate court reverses the judgment of the first instance court on the credibility of a witness's statement, matters to be considered.

Article 308 of the Criminal Procedure Act

Supreme Court Decision 91Do1672 delivered on October 22, 1991 (Gong1991, 2871) Supreme Court Decision 94Do1545 delivered on November 25, 1994 (Gong1995Sang, 139) Supreme Court Decision 96Do2461 delivered on December 6, 1996 (Gong197Sang, 279) Supreme Court Decision 2005Do130 Delivered on May 26, 2005 (Gong2005Ha, 1088) (Gong2006Do494 Delivered on November 24, 2006)

Defendant

Defendant

Busan District Court Decision 2006No3273 Decided February 15, 2007

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

The grounds of appeal are examined.

1. Where the appellate court recognizes that the grounds for appeal exist, it is a principle that the credibility of the testimony can be determined without re-examination of the witness examined by the first instance court and only by the entry in the protocol thereof. 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 first instance court in light of the contents of the first instance judgment and the evidence duly examined by the first instance court, or in exceptional circumstances where it is deemed that maintaining the first instance court’s determination on the credibility of the statement made by 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 at the appellate court, it is remarkably unreasonable to maintain the first instance court’s determination on the credibility of the statement made by the first instance court, the appellate court should not reverse without permission on the ground that the first instance court’s determination on the credibility of the statement made by the witness of the first instance court is different from the judgment at the appellate court (see Supreme Court Decisions 91Do1672, Oct. 2222, 19965Do165, 265, 1964, 265, 1965, Do4, 19665, 1964.

In particular, in the case of evidence supporting the facts charged, even though the first instance court, which directly observed the appearance and attitude of the witness who directly observe the witness's statement while proceeding the witness examination procedure, judged that the credibility of the witness's statement cannot be acknowledged, if the appellate court intends to determine that the credibility of the witness's statement can be acknowledged, the first instance court's decision rejecting the credibility of the witness's statement should be sufficient and acceptable.

2. According to the records, at around 02:20 on April 5, 2004, the first instance court sentenced the defendant not guilty on the ground that the female employees of the amusement restaurant in the defendant's management committed obscene acts against the non-indicted 1, 2, and 3 on the grounds that they are inconsistent with each of the above non-indicted 1 et al., which correspond to the facts charged in the instant case, and thus, the defendant was found not guilty. The prosecutor appealed on the appeal, and the court below closed the arguments on the first day of the lower court's trial without any further examination of evidence by examining the above non-indicted 1 et al. as witness again, and then dismissed the judgment of the first instance court on the violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals A et al., and found the

In light of the above legal principles, the above measures by the court below are against the principle of court-oriented trial and the principle of direct examination, and thus, there is an error of law affecting the conclusion of the judgment by violating the rules of evidence. The allegation in the grounds of appeal that points this out has 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 Park Si-hwan (Presiding Justice)