B. Whether perjury and maternal perjury constitute “a case where the degree of punishment has been serious due to the status relationship” as stipulated in the proviso of Article 33 of the Criminal Act

(c) Whether a person who has instigated a perjury for the purpose of harming his/her mother can be punished as a crime of flapsing, even if he/she did not have the purpose of gathering it;

D. If the proviso to Article 33 of the Criminal Act is interpreted as a criminal intent, whether there is no illegality in the application of the Act even if the proviso is not specified.

E. Whether the proviso of Article 33 of the Criminal Act preferentially applies to Article 31(1) of the Criminal Act, and is punished more than a principal offender who has no status than a principal offender who has no status.

B. Article 152(1) and (2) of the Criminal Act distinguishs the severity of the punishment to be imposed on the criminal according to the difference in the special circumstances of the criminal who did not have such a purpose, and thus, it is reasonable to deem that it constitutes “where the severity of the punishment has been achieved due to the status relationship” as stipulated in the proviso of Article 33 of the Criminal Act.

C. As long as the defendant instigated Eul to commit a perjury for the purpose of undermining Gap's gathering, even if there was no purpose of gathering Eul as a principal offender for domestic affairs, the defendant may be punished as a crime of aiding and abetting the defendant pursuant to the proviso of Article 33 of the Criminal Act.

D. The purport of applying the above proviso to Article 33 of the Criminal Act to laws and regulations, other than the substantive laws that should be applied to specific criminal facts, is recognized. In particular, it cannot be said that there was an error by failing to indicate the relevant laws and regulations in the application column of the law. Thus, in a case where an act of perjury is committed by aiding and abetting a person without such purpose, the person who has such purpose should be punished for perjury, and in a case where an act of perjury is committed by aiding and abetting a person without such purpose, it cannot be said that there was an error by omitting the above proviso to Article 33 of the Criminal Act even if the application of the law did not specify the above proviso.

E. Article 31(1) of the Criminal Act is limited to a case where a single-class teacher who is an accomplice in consultation declares the general principle that he is subordinate to a principal offender in its formation and punishment, and in a case where the severity of a punishment exists due to his status relationship, if a person who has no status has instigated another person to commit an offense by aiding and abetting another person who has no status, the proviso to Article 33 of the Criminal Act is applied in preference to Article 31(1) of the Criminal Act, and thus, a teacher who has status is more severe than a principal offender

1. According to each evidence of the judgment of the court of first instance cited by the judgment of the court below, the measures of the court below that recognized that the defendant instigated the non-indicted to give a perjury to the non-indicted for the purpose of impairing the victim's escape on April 12, 198 and the non-indicted testified against his memory as stated in its judgment are just and acceptable, and there is no error of law of misconception of facts due to a violation of the rules of evidence, such as the theory of lawsuit, etc., and there

2. The so-called status relationship under Article 33 of the Criminal Act refers not only to the gender of male and female, the distinction between foreigners in Korea, the relationship between the status as a public official, but also to the special status or condition of an offender involved in a specific criminal act widely. Article 152(1) of the Criminal Act provides that "where a witness who has taken an oath under Acts makes a false public notice, he/she shall be punished by imprisonment for not more than five years or by a fine not exceeding twenty five thousand won," and Article 33(2) of the Criminal Act provides that "where a person commits a crime under the preceding paragraph with the intention to harm the defendant, suspect or disciplinary suspect, he/she shall be punished by imprisonment for not more than ten years, or if he/she commits a crime under the preceding paragraph with the intention to harm the criminal defendant, etc. of a criminal case, the offender who has given the above certificate has "the purpose to harm the defendant, etc. of the criminal case, or has the degree of punishment to be imposed on the criminal according to the difference in a specific situation without such purpose."

Therefore, as long as the defendant instigated the non-indicted person for the purpose of impairing the above abortion, even if there was no purpose to gather the non-indicted person who is a principal offender for domestic affairs, the court below's decision that presented it to the same purpose is just, and there is no error of law by misunderstanding the legal principles as to the principal offender, accomplice and status, such as the theory of lawsuit.

In light of the reasoning of the judgment below, the court below pointed out that the proviso to Article 33 of the Criminal Act is omitted in the opening of the applicable provisions of the law against the defendant. However, the purport of applying the provisions of the law other than the substantive law that should be applied to specific criminal facts is recognized, and in particular, it cannot be deemed an unlawful act because it did not indicate the law in the column of application of the law (see, e.g., Supreme Court Decision 90Do2869, Mar. 12, 191; 92Do2196, Oct. 27, 1992). According to the reasoning of the judgment of the court below, where the court below committed perjury by aiding and abetting a person who has no purpose thereof, the person who has the purpose thereof shall be punished for perjury, and since a person without purpose shall be punished for perjury, the defendant shall be punished for perjury, and so long as the application of the proviso to Article 33 of the Criminal Act is interpreted as a violation of the law, it does not affect the conclusion of the judgment.

In addition, Article 31 (1) of the Criminal Code provides that "a person who has instigated another person to commit a crime shall be punished as if the principal offender were committed the same offense." Article 31 (1) of the Criminal Code provides that "If the principal offender who is an accomplice in consultation declares the general principle that he is subordinate to the principal offender in the formation and punishment of the crime." Therefore, in the case where the seriousness of a punishment exists due to his status relationship as in this case as in this case, if a person who has no status has instigated another person to commit a crime by instigating another person, he shall be punished more than the principal offender who has no status by preferentially applying the proviso of Article 33 (1) of the Criminal Code prior to the above Article 31 (1) of the Criminal Code, so long as the principal offender is punished for a simple perjury, the principal offender shall not be punished for the same punishment as the principal offender under the above Article 31 (1) of the Criminal Code is merely an independent opinion inconsistent with the above legal principles and cannot be accepted.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)