[위증][공2012상,97]
[1] In a case where a witness who has been convicted of himself/herself is scheduled to file an application for reexamination of the final judgment, whether the right to refuse to testify under Article 148 of the Criminal Procedure Act is recognized as a prosecuted case against an accomplice (negative)
[2] Where the defendant appeared as a witness of the defendant's case against an accomplice Gap who was prosecuted for a violation of the Narcotics Control Act after being found guilty, and made a false statement, the case affirming the judgment below that the defendant did not have the right to refuse to testify, and even if the defendant was not notified of the right to refuse to testify prior to his/her testimony, he/she did not err in the examination procedure of perjury
[1] The right to refuse to testify under Article 148 of the Criminal Procedure Act refers to a special right to refuse to commit a crime of self-incrimination that embodys the principle of prohibition of coercion against unfavorable statements under Article 12(2) of the Constitution. In the event a final judgment of conviction has already been rendered, a witness for whom a judgment of conviction has become final and conclusive cannot refuse to testify in a case involving an accomplice. Even if a witness denies a crime committed against himself/herself in a criminal case against himself/herself, it cannot be deemed that such circumstance alone does not lead to a situation where the witness could not expect to make a statement as true, and thus, the establishment of perjury cannot be denied. Meanwhile, even if a witness whose judgment of conviction has become final and conclusive requests a retrial, there is no change in the fact that a witness has already been final and conclusive, and a request for a retrial for the disadvantage of a defendant is not allowed under the Criminal Procedure Act (Article 420 of the Criminal Procedure Act). Thus, a witness cannot be deemed to have been subject to a criminal prosecution or a criminal prosecution against his/her accomplice on the ground that he/she could not be subject to a new trial (Article 439).
[2] In a case where the defendant appeared as a witness in the trial proceedings against the accomplice Gap who was prosecuted for a violation of the Narcotics Control Act after being found guilty, and made a false statement, the case affirming the judgment below that the defendant did not have the right to refuse to testify, and even if the defendant was not notified of the right to refuse to testify prior to his/her testimony, he/she did not err in the procedure of witness examination.
[1] Articles 12(2) and 13(1) of the Constitution of the Republic of Korea; Article 152(1) of the Criminal Act; Articles 148, 420, and 439 of the Criminal Procedure Act / [2] Article 152(1) of the Criminal Act; Articles 2 subparag. 4(b), 4(1), and 60(1)3 of the Narcotics Control Act; Articles 148 and 160 of the Criminal Procedure Act
[1] Supreme Court Decision 2005Do10101 decided Oct. 23, 2008 (Gong2008Ha, 1620)
Defendant
Defendant
Busan District Court Decision 2010No3881 Decided August 25, 2011
The appeal is dismissed.
We examine the grounds of appeal.
1. As to the assertion of misapprehension of legal principles as to perjury
(1) Article 148 of the Criminal Procedure Act provides that "any person may refuse to testify that may be the cause of criminal prosecution, prosecution or conviction against him/her." The right to refuse to testify under Article 148 of the Criminal Procedure Act relates to the privilege against self-incrimination that embodys the principle of prohibition of coercion against unfavorable statements under Article 12(2) of the Constitution. When a conviction has already been rendered, a witness whose conviction has become final and conclusive is not subject to punishment again under Article 13(1) of the Constitution. Therefore, even if a witness denies a crime in a criminal case against him/her, he/she cannot refuse to testify by a prosecuted case against his/her accomplice, and even if the witness denies a conviction in a criminal case against him/her, it cannot be deemed that there is no possibility that the witness will be able to make a statement as true, and thus, the establishment of perjury cannot be denied (see Supreme Court Decision 2005Do10101, Oct. 23, 2008).
(2) Examining the records in light of the above legal principles, the court below is just in finding that the defendant's testimony of this case was made after his conviction was finalized, and there was no right to refuse to testify as a prosecuted case against his accomplice. Thus, even if the defendant was not notified of the right to refuse to testify prior to his testimony, the court below affirmed the judgment of the court of first instance which found the defendant guilty of perjury by judging that there was no error in the witness examination procedure. In so doing, the court below did not err by misapprehending the legal principles on the right
2. As to the assertion of mistake of fact
According to Article 383 subparag. 4 of the Criminal Procedure Act, only cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the ground that the judgment of the court below had affected the judgment, and thus, in this case where a fine of two million won has been imposed against the defendant, the allegation that the defendant did not make a false statement cannot be a legitimate ground for appeal. Furthermore, even upon examining the record, the court below did not err by misapprehending the law
3. Conclusion
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Nung-hwan (Presiding Justice)