When may an appeal court overturn the trial court's credibility finding on a witness? Supreme Court Decision 2006Do4994 on 'substantive immediacy'

Question

Article 308 of the Criminal Procedure Act provides that the probative force of evidence is determined by the judge's free judgment, and Article 275(1) provides that the trial is heard at a hearing in the courtroom. In a system that adopts the principle of concentration of trial and substantive immediacy, where the trial court hears a witness in person and the appeal court works mainly from the record, the question is on what conditions an appeal court may reverse the trial court's assessment of a witness's credibility.

Decision 2006Do4994 raises that question on an appeal by the defendant from a judgment of the Seoul Western District Court of 4 July 2006 (2005No1303). The trial court had heard Non-party 1 and Non-party 2 as witnesses, rejected their testimony as not credible and acquitted the defendant of forging and using a promissory note and a letter of attorney bearing Non-party 1's seal; the appeal court reversed and convicted, and the Supreme Court set its judgment aside.

Material to check

The statutes are Article 275 of the Criminal Procedure Act, on the hearing at a hearing in the courtroom, paragraph 1 of which provides that the trial is heard at a hearing in the courtroom on a trial date, and Article 308 of that Act, on free evaluation of evidence, which provides that the probative force of evidence is determined by the judge's free judgment. These are the provisions the decision cites.

The decisions are the decision, Supreme Court Decision 2006Do4994 (24 November 2006), and the four precedents it cites: Decision 91Do1672 (22 October 1991), where the appeal court believed the victim's first-instance testimony that the record itself showed to be unreliable without re-examining the witness; Decision 94Do1545 (25 November 1994), on what the appeal court must do where it doubts the only evidence of guilt but no rational ground shows the trial court's free evaluation to be plainly wrong; Decision 96Do2461 (6 December 1996), holding that the appeal court may not reject such evidence without further inquiry; and Decision 2005Do130 (26 May 2005), which repeats the point of Decision 91Do1672 and also states the conditions for admitting polygraph results.

Possible readings

On the first reading, Decision 2006Do4994 states that the Criminal Procedure Act adopts substantive immediacy as an element of the principle of concentration of trial: only evidence examined directly before the judge may be the basis of the judgment, the original evidence closest to the fact to be proved must be used, and substitutes for the original evidence must in principle not be allowed. The stated reasons are that the judge can thereby form a fresh and accurate impression and the defendant is given a direct opportunity to comment on the original evidence, so as to discover substantive truth and realise a fair trial.

A second reading follows from the difference between the two courts' methods of assessment. The trial court evaluates a witness's credibility using not only the content of the statement but also the witness's appearance and attitude while testifying under oath in open court, the nuances of the statement and other circumstances hard to record in a witness examination record. The appeal court, under the current Criminal Procedure Act as the decision describes it, has essentially only the record, and cannot reflect those matters; that is the stated inherent limitation of its assessment. On that basis the decision states that, unless the trial court's finding was clearly wrong on special grounds, or keeping it would be markedly unjust on the combined evidence taken up to the close of the appeal argument, the appeal court must not reverse it merely because its own view differs.

A third reading concerns the special case of evidence supporting the charge. Decision 2006Do4994 holds that where the trial court, having observed the witness's appearance and attitude directly, found the testimony not credible, the appeal court may reverse and find it credible only where 'sufficient and convincing marked circumstances' making the trial court's rejection unacceptable appear. The cited precedents add that where the appeal court doubts a piece of evidence the trial court admitted but no rational ground shows the trial court's free evaluation plainly wrong, it must inquire further, by re-examining the evidence or pressing the prosecutor to prove, and may not reject the evidence outright on doubt alone (Decisions 94Do1545 and 96Do2461).

What the decisions held

Supreme Court Decision 2006Do4994 set aside the judgment of the Seoul Western District Court of 4 July 2006 (2005No1303) and remanded the case to a panel of the Seoul Western District Court. It held that the appeal court's act in reversing the trial court's assessment of the credibility of the witnesses' statements violated the rules of evidence by running counter to the principles of concentration of trial and immediacy, and that the error plainly affected the judgment.

The charge, as the decision records it, was that the defendant, having come to possess Non-party 1's seal around April 2004 by unknown means, forged and used the promissory note and the letter of attorney in the case. The defendant asserted from the early stage of the investigation that Non-party 1 visited his office at the time stated in the charge and stamped her seal herself on a blank promissory note and a letter of attorney to guarantee her husband Non-party 2's debt. Non-party 1 and Non-party 2 consistently denied any such guarantee, any visit to the defendant's office and any delivery of the seal, and testified to the same effect at first instance. The trial court, after examining both witnesses, rejected their testimony as not credible in light of the fact that Non-party 1's seal was stamped on the documents, and acquitted the defendant.

The appeal court, after giving an explanation to the defendant about the circumstances of Non-party 1's guarantee and examining some further documents he submitted, found the two witnesses' first-instance courtroom statements credible and convicted him, relying on the absence of Non-party 1's signature or seal in the co-guarantor column of the loan documents and the fact that the defendant had not obtained Non-party 1's seal certificate. The Supreme Court held that those matters were drawn from loan documents attached to the investigation record, already examined at first instance and already raised during the investigation and first instance, and were only some of the circumstances the trial court had already considered in rejecting the witnesses' credibility. They were not marked circumstances sufficient to overturn that assessment.

Points left open

The decision fixes a demanding standard for reversal but does not state what kind of matter would qualify as 'sufficient and convincing marked circumstances'. It only finds that the appeal court's points failed that test; the boundary of the exception, and whether new evidence adduced only on appeal could meet it, is left to future cases.

The decision states the rule for witnesses whose testimony supports the charge, and the general rule against reversing merely because the appeal court's view differs. It does not state in its own terms how the rule applies to evidence favourable to the defence. As for the appeal court's next step, the texts read for this brief answer part of the question: Decisions 91Do1672 and 2005Do130 say where the appeal court finds grounds for appeal, it may in principle judge credibility from the record alone without re-examining the witness, but that believing a victim's first-instance testimony without re-examining is grossly unfair where the witness examination record itself shows grounds for disbelief. Decisions 94Do1545 and 96Do2461 add, for the converse case, that an appeal court which doubts evidence the trial court admitted must inquire further before rejecting it. What the appeal court must do beyond that is not settled.

When to reconsider

We revisit this brief if the Criminal Procedure Act amends Article 275 or Article 308, if a later Supreme Court decision defines what counts as sufficient and convincing marked circumstances for reversing a credibility finding, or if the case returns to the courts after the remand.

Statutes referred to

• 형사소송법 제275조, 제308조

Decisions referred to

• 대법원 2006. 11. 24. 선고 2006도4994 판결 · Decision ledger
• 대법원 1991. 10. 22. 선고 91도1672 판결
• 대법원 1994. 11. 25. 선고 94도1545 판결
• 대법원 1996. 12. 6. 선고 96도2461 판결
• 대법원 2005. 5. 26. 선고 2005도130 판결

Verification status

All texts were read at the National Law Information Center (law.go.kr) on 24 October 2026: the decision in its published holdings, summary, cited provisions and full reasons, and the current text of the cited articles and the cited decisions' holdings and summaries. The decision cites Article 275(1) and Article 308 of the Criminal Procedure Act as the provisions on which it rests.