A defendant shall be punished by imprisonment for not less than one year and six months.

188 days of detention before pronouncement of the judgment below shall be included in the above sentence.

Of the facts charged in the instant case, perjury is acquitted.

First of all, the court below found the defendant guilty of fraud and perjury among the facts charged against the defendant, and found the defendant not guilty of occupational breach of trust, but did not appeal the guilty portion by filing an appeal. Thus, the scope of the judgment of the court below is limited to the part which the court below found the defendant guilty.

2. Summary of grounds for appeal;

The punishment sentenced by the court below (two years of imprisonment) is too unreasonable.

3. Ex officio determination

A. The defense counsel asserts that there is an error of mistake of facts or misapprehension of legal principles as to perjury in the supplement of the grounds for appeal submitted on September 4, 2009. This is a legitimate ground for appeal as it is alleged after the lapse of the period for submitting the grounds of appeal, but it is necessary to make ex officio determination as to this. Thus, it is necessary to review ex officio prior to examining the grounds for appeal.

B. The summary of the facts charged as to perjury is as follows: (a) around October 17, 2007, the defendant appeared and testified as a witness at the trial date in the Suwon District Court Sungnam Branch Branch 2007Gahap688, which was brought against the damaged Nonghyup by the non-indicted 1 Co., Ltd., as a result of an oath; and (b) he knows that the amount of money transferred from the non-indicted 2 is not the money borrowed from the non-indicted 2, but the amount of the money received from the non-indicted 1 Co., Ltd. was received from the non-indicted 2 at the defendant's order, and he was aware that the non-indicted 1 Co., Ltd. received the money from the non-indicted 2 for personal necessity from the non-indicted 1 Co., Ltd.; and (c) the plaintiff (the representative of the non-indicted 1 Co., Ltd.) made a false statement contrary to his memory, regardless of the trading intermediary. The court below found this guilty.

C. Article 314 of the Civil Procedure Act provides that testimony may be refused when the person who is or was the relative, guardian, or family member of the witness or witness, or the person who was or was the guardian of the witness, may be prosecuted or convicted, or when the person or the person who was the guardian of the witness is about the matter which would be a desire to bring the witness to himself or the witness.

On the other hand, Article 148 of the Criminal Procedure Act provides that any person who is or was a relative, legal representative, supervisor of guardianship may refuse to testify that may cause a criminal prosecution, prosecution, or conviction, or that he/she shall notify the presiding judge of such right to refuse to testify. The purport of Article 160 of the Criminal Procedure Act provides that the right to refuse to testify shall be notified. The purpose of the Criminal Procedure Act is to ensure that the right to refuse to testify is to guarantee the right to refuse to testify and avoid risks of perjury through the exercise of the right to refuse to testify, while it is possible for a witness who has been adopted as a witness to waive the right to refuse to testify and make a statement contrary to his/her memory, so the right to refuse to testify shall be punished as perjury because the right to refuse to testify is the only escape where a witness may be exempted from punishment for perjury in trial proceedings, and the notification of the right to refuse to testify shall be a procedural guarantee for the right to refuse to testify.

Therefore, the court has a duty to notify the right to refuse to testify, regardless of whether a witness exercised the right to refuse to testify when a witness is notified of the right to refuse to testify, and whether a witness makes a false statement. If a court examines a witness without notifying the right to refuse to testify in accordance with Article 148 of the Criminal Procedure Act to a person who has the right to refuse to testify in accordance with Article 160 of the Criminal Procedure Act, the procedure for witness examination is in violation of the principle of prohibition of compulsory performance of contribution under the Constitution, and there is a serious procedural violation of the purpose of the right to refuse to testify by clearly lowering the possibility of expectation of witness memory or significantly lowering the possibility of witness memory.

Thus, perjury can be punished only when a witness gives testimony in a legitimate witness examination procedure that can be expected to give his/her memory even when a witness gives up his/her testimony without being notified of the right to refuse to give testimony despite being notified of the right to refuse to give testimony, and the right to refuse to give testimony can not be punished for perjury without being notified of such right to refuse to give testimony. [See, e.g., the Chuncheon District Court Decision 2008No695,82, Apr. 17, 2009]

D. As above, Article 160 of the Criminal Procedure Act provides for the right to refuse to testify with the provision on the right to refuse to give testimony, while the Civil Procedure Act does not provide for the notification of the right to refuse to give testimony. As such, whether a witness can be punished for perjury without being notified of the right to refuse to give testimony in a civil court, it is related to the defendant whose testimony is currently under criminal trial. As such, there is a possibility that the witness can immediately be convicted of guilt by testimony of the witness (if the witness is co-defendant, such as an accomplice who is under trial together, he/she is directly convicted of his/her conviction). In addition, it is difficult to judge whether the right to refuse to give testimony in a civil court because it is more likely that the witness will be accused by the prosecutor immediately, etc., and there is no need to strictly guarantee the right to refuse to give testimony through the notification of the right to refuse to give testimony. However, in a civil procedure, it is difficult to consider whether the right to refuse to give testimony can be seen that there is a possibility that a witness can be an individual method of giving testimony or to give testimony in the public.

Thus, the substantial and procedural guarantee of the right to refuse to testify pursuant to the principle of prohibition of self-incrimination under the Constitution shall be applied to all witnesses subject to punishment of perjury, such as civil law, as well as criminal law. Thus, even though there is no express provision on notification of the right to refuse to testify under the Civil Procedure Act (this seems to be a legislative defect), the presiding judge's failure to notify the right to refuse to testify is unlawful and therefore, it cannot be said that the witness who testified in an illegal examination procedure cannot be punished for perjury without being notified of the right to refuse to testify.

However, according to the records, the defendant was at issue of the crime of fraud of this case, and thereafter, the non-indicted 1 corporation (the plaintiff) appeared as a witness in the trial on the price of goods brought by the non-indicted 1 corporation (the victim of the crime of this case) against the non-indicted 2, even though it is clear that the plaintiff received the money to be paid by the defendant on behalf of the defendant, such as this part of the facts charged, and thereafter, he was prosecuted by the non-indicted 2 (the defendant was charged with the crime of this case by the fraud of this case and perjury from the non-indicted 2). In addition, in light of these circumstances, it is highly probable that the defendant testified in relation to the crime of fraud of this case and the facts charged of breach of trust at the time of testimony as above, since the defendant's testimony at the time of the above testimony could not be prosecuted by him or the defendant's testimony could not be charged with the witness's right to refuse testimony in the procedure of witness examination, the court did not have any serious violation of law.

Therefore, the court below erred by misunderstanding the facts charged as to the defendant's perjury or by misunderstanding the legal principles, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for appeal on unfair sentencing, on the ground of the above ex officio reversal, and the judgment of the court below is again reversed, and it is so decided as follows.

The Defendant, while taking charge of the above sales business, provided unreasonable discount rates in order to raise the sales proceeds of Nonindicted Co. 1’s agricultural chemicals in sales performance, resulting in losses equivalent to the pertinent discount rates. The Defendant, taking advantage of the fact that the amount of losses was paid in the amount of losses, by selling pesticides or retail merchants under customary practices, and by paying the amount of the advance payment for one year after supplying pesticides, he arbitrarily used the advance payment received from the business partners, etc. in lieu of the stock quantity of seeds and seedlings, and thereby preventing the Defendant from returning the advance payment for the following year to seeds and seedlings.

On December 20, 2005, the Defendant came to know of the fact that the damaged agricultural cooperative office located in Pyeongtaek-gu Seoul Special Metropolitan City Seogwon-gun (PP 2 omitted) purchased a pesticide stock at a price discounted by the unit of the agricultural cooperative for one year, not a pre-paid product (i.e., in the method of payment of the pesticide stock until the end of December of the following year), not a pre-paid product (i.e., in the method of payment of the purchase price within 30 days from the delivery of the pesticide) (i.e., cash purchase). On the other hand, the Defendant attempted to procure funds by means of a pre-paid product (i.e., in cash purchase). On the other hand, the Defendant attempted to make a contract by means of a pre-paid product (i.e., in the method of payment of the purchase price in cash within 30 days from the delivery of the pesticide). On the other hand, the Defendant attempted to raise funds for the purpose of returning the seeds

Therefore, the defendant tried to supply the stock of the seeds and seedlings known to the damaged agricultural cooperative to the injured agricultural cooperative by a joint purchase method, but there is a difference between the items and quantity of the necessary pesticide in 2006. The defendant presented in the side of the damaged agricultural cooperative, and the items and quantity presented by the defendant, the defendant supplied the stock of the seeds and seedlings only at 40% among the inventory materials presented by the defendant, and the remaining 60% of the pesticide quantity in the remaining 60% of the pesticide quantity are to be supplied to the non-indicted 1 corporation at discount price. Accordingly, the damage to the defendant and the agricultural cooperative entered into a sales contract with the above joint purchase method with respect to the agrochemicals needed by the damaged agricultural cooperative in 206. In response, the defendant and the agricultural cooperative entered into a sales contract with the non-indicted 3 and the non-indicted 2 in the name of the seeds and seedlings supplied with agrochemicals as the representative, and the money was transferred to the non-indicted 3 and non-indicted

However, the defendant was well aware that the defendant could not supply the amount of 60% of the pesticide quantities that he did not secure at a discounted price set by the defendant from the non-indicted 1 corporation, and that the damaged agricultural cooperative will not enter into a pre-paid contract in the event of supply at a discounted price, not at a discounted price.

Nevertheless, the Defendant, on December 29, 2005, acquired the amount of KRW 309,797,320 at a discount of the amount equivalent to 60% of the total supply volume from the damaged agricultural cooperative to the non-indicted 1 Co., Ltd. to be supplied at a discounted price for all the quantities other than the actual supply volume by the Defendant to the damaged agricultural cooperative, and acquired it by transfer from the damaged agricultural cooperative to the non-indicted 3 and the non-indicted 2.

1. Each legal statement of the witness Nonindicted 4, 5, 2, 3, 6, and 7

1. The prosecutor's protocol of interrogation of the accused (including Nonindicted 6, 4, 2, and 3 substitutes)

1. A copy of the contract for modern pesticide seeds and seedlings companies, or a copy of the contract for high-speed seeds and seedlings;

1. A detailed statement of passbook transactions;

1. A copy of statement of transactions, a copy of deposit transaction statement, a copy of tax invoice, and a copy of passbook transaction;

1. A copy of the material of Nonindicted Co. 1

Article 347(1) of the Criminal Act, Selection of Imprisonment

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

Judges Jeong Jong-sung (Presiding Judge)

Not signing and sealing by a training trip;