(b) False statements to conceal his criminal facts and the sex of perjury;

B. If a witness makes a statement based on the truth as long as he/she has taken an oath, he/she shall be given a statement citing his/her crime, and the refusal of testimony shall be based on his/her crime, and even if it is impossible to expect the witness to make a true statement, it cannot be said that there is no possibility of lawful act as long as he/she recognizes the right to refuse to testify and provides the escape from perjury under the Criminal Procedure Act. Therefore, if a witness who has taken an oath renounces the right to refuse to testify and makes a false statement, punishment for perjury cannot be exempted.

[ en banc Decision: 61.07.13. 4294 Form 194 decided on the merits of this decision]

The court below (including the judgment of the court of first instance maintained by the court below; hereinafter the same shall apply) ruled that the defendant's act of refusing to testify or refusing to testify by being summoned as a witness of the Seoul District Court case on June 29, 1983 after being summoned as the above witness of the defendant's misappropriation case and giving testimony to the defendant's last witness of the crime of breach of trust, because the defendant's act of refusing to testify or refusing to testify by being summoned the above defendant's testimony because he did not know that other creditors of the above building will be seized at the time of the above time because he did not know that the defendant's last witness's act of refusing to testify by obtaining the documents for transfer of ownership on the building stated in the facts charged, and by obtaining the documents for transfer of ownership to his original name, and by obtaining the above documents for transfer of ownership, the court below held that the defendant's act of refusing to testify should be held as a witness of the above defendant's 4th time's testimony by demanding the defendant's testimony of the above crime of violation of the law.

Perjury is a crime established by making a false statement by a witness who has taken an oath, and its main legislative purpose is to properly exercise jurisdiction and disciplinary power. Accordingly, even after issuing perjury, when a witness makes a confession or surrenders himself/herself before a judgment or disciplinary measure becomes final and conclusive, punishment shall be mitigated or exempted as necessary (Article 153 of the Criminal Act). In cases where it is difficult to expect a witness to make a true statement, the right to refuse to testify is recognized and the truth of testimony is guaranteed (Article 148 of the Criminal Procedure Act).

In the case of this case, the court below denied the establishment of perjury on the grounds that it is true if a defendant makes a statement as a witness that he has taken an oath, and that the refusal of testimony would undermine his own crime, and that it is impossible to expect the defendant to make a true statement. However, as long as the defendant recognizes the right to refuse to testify and has prepared an escape tool from perjury, it cannot be said that there is no possibility of lawful act, and the witness who has taken an oath cannot be exempted from punishment of perjury unless he renounces the right to refuse to testify and makes a false statement. The right not to force him to make a criminal unfavorable statement (Article 11(2) of the Constitution) is not the purport of guaranteeing the right to actively make a false statement. Party members inconsistent with this opinion should abolish the Decision 4294 Form 194 decided July 13, 196.

If so, the court below erred in the misapprehension of the legal principles on perjury.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-chul (Presiding Justice)