Examining the reasoning of the lower judgment and the evidence duly admitted by the lower court, the lower court was justifiable to have found the Defendant guilty of fraud among the facts charged in the instant case on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence and exceeding the bounds of logical and empirical rules

2. Determination ex officio as to perjury;

A. The right to refuse to testify under the Criminal Procedure Act provides that a witness has the right to refuse to perform his/her duty to testify, and the notification system of the right to refuse to testify provides a witness with sufficient opportunity to examine whether the right to refuse to testify or make a statement. Considering that the notification system of the right to refuse to testify is intended to guarantee a witness’s right to remain silent by sufficiently providing the witness with an opportunity to examine whether the right to refuse to testify or to make a statement before examination, even in cases where the presiding judge fails to notify the right to refuse to testify to the witness before examination, the establishment of perjury should be determined on the basis of whether the witness makes a statement without silence in whole and in comprehensive consideration of the specific situation of the witness at the time of testimony in question, the reason for refusal to testify, the contents of the reason for refusal to testify, the existence of the right to refuse to testify, the existence of the right to refuse to make a false statement even after being notified of the right to refuse to testify, or whether there is a circumstance that the witness made a false statement is true by his/her genuine will.

B. According to the reasoning of the judgment below, the summary of perjury among the facts charged in the instant case is as follows: the Defendant appeared and taken an oath as a witness of the fraudulent defendant's case against Suwon District Court Ansan Branch 2010Kadan224, 2010Kadan224, and the Defendant maintained the judgment of the first instance court convicting the Defendant of this part of the facts charged on the following grounds: (a) Nonindicted Party 1 et al. was supplied with meat from the victims without the intention to pay the price; and (b) the Defendant was accused of criminal liability by fraud; and (c) in return, Nonindicted Party 1 et al. received a sum of KRW 180,000 from Nonindicted Party 1 et al. in accordance with the contents of the Defendant's invitation to commit criminal liability; and (d) as a result,

C. However, according to the evidence duly admitted by the court below, the prosecutor and the presiding judge’s examination statement on this part of the facts charged related to whether the defendant committed fraud by acquiring the meat from the victims in collusion with Nonindicted 1, etc., and thus, constitutes a criminal prosecution, prosecution, or conviction, and thus, the defendant is likely to be prosecuted or convicted. However, according to the evidence duly admitted by the court below, the examination protocol on Nonindicted 1, etc. as to the defendant in the above fraud case on the witness examination statement on Nonindicted 1, etc. stated as follows: “The witness shall be asked whether he/she falls under Article 148 or 149 of the Criminal Procedure Act, and he/she shall take an oath as in

Considering the above circumstances, it is reasonable to view that the defendant made an oath and made a testimony under the condition that the defendant failed to be notified of the right to refuse to testify despite the reason for refusal of testimony as to the right to refuse to make a contribution as provided by Article 148 of the Criminal Procedure Act. Thus, it is difficult to ask such defendant for the charge of perjury as to the statement stated in this part of the facts charged.

D. Nevertheless, the court below, without examining the grounds for refusing to testify of the defendant and whether the defendant notified the defendant of the right to refuse to testify, etc., and recognized the establishment of perjury on the sole ground that the defendant's statement in this part of the facts charged is false. In so doing, the court below erred by misapprehending the legal principles on the grounds for refusing to testify, notification of the right to refuse to testify, requirements for establishing perjury, etc. under Article 148 of the Criminal Procedure

3. Conclusion

Therefore, the part of the lower judgment regarding perjury is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)