[2] The case holding that it is difficult to deem that an act of mistake or coercion under law or that there was no possibility of expectation, in case where a person requested to appear as a witness of the inspection refuses an order of accompanying after being present at the inspection site

[2] The case holding that in a case where a person who was requested to attend as a witness of the inspection refuses an order of accompanying after being present at the inspection site, it is difficult to deem that such act constitutes an error or coercion under law or there is no possibility of expectation

The defendant shall be exempted from punishment.

A. Summary of the defendant's appeal

(1) misunderstanding of facts or misapprehension of legal principles

Although it was true that the defendant was absent at the inspection place of the state administration of this case, since there was a criminal case against the defendant at the time, there is a circumstance that he was present at the inspection place of the state administration and gives testimony and thus he may be convicted of the facts charged in the criminal case that is in progress at the time, or may be indicted additionally. However, in the above criminal case, there is a situation unfavorable to the sentencing in the above criminal case, so the defendant's defense counsel at the time constitutes "justifiable cause" under the Act on Testimony, Appraisal, etc. at the National Assembly, and the defendant's defense counsel at that time strongly opposed the defendant to the defendant's appearance for the above reason, so the defendant's mistake that his act was not committed, and the investigation of the above criminal case at that time constitutes a mistake under law because the defendant was forced to be absent, or there was no possibility of expectation for lawful act, the court below erred in finding the defendant guilty.

(2) The assertion of unreasonable sentencing

Considering the circumstances of the instant case, the lower court’s sentencing against the Defendant is too unreasonable, considering the following: (a) the Defendant was willing to attend the inspection site of the State administration of the instant case, but the Defendant was absent due to the solicitation by the defense counsel and the prosecutor.

B. Summary of prosecutor's appeal

Article 12(1) of the Act on Testimony, Appraisal, etc. before the National Assembly applies the facts charged of the instant case to Article 12(1) of the Act on Testimony, Appraisal, etc. at the National Assembly, and its statutory penalty is “a imprisonment for not more than three years or a fine not exceeding ten million won.” The facts charged of the instant Article 13(2) is applicable to Article 13 of the above Act, and its statutory penalty is “a imprisonment for not more than five years” and the facts charged constitute concurrent crimes. As such, the lower court erred by misapprehending the relevant Act and subordinate statutes that imposed a fine not exceeding five million won on the Defendant

2. Determination:

A. Facts of recognition

In full view of the aforementioned testimony and statement of the court below, Nonindicted Party 1 and Nonindicted Party 2 and Nonindicted Party 3’s testimony at the court below’s request, the National Assembly Legislation and Judiciary Committee adopted the Defendant’s testimony at the prosecutor’s office over 163 occasions before and after the prosecution, and the witness’s testimony at the trial of the Seoul High Prosecutor’s Office. On October 8, 2004, it was possible to examine the Defendant with the above contents as above; “The Defendant was present at the court below’s 10 days before and after the prosecution’s appearance at the court below’s request; Nonindicted Party 1 and Nonindicted Party 3 were present at the court below’s meeting; Defendant’s testimony at the court below’s 10 days before and after the prosecution’s appearance at the court meeting; Defendant’s testimony at the court below’s 1 and 20 days after the prosecution’s appearance at the court meeting; Defendant is likely to be present at the court below’s 1 and 4 years after the prosecution’s appearance at the court meeting.

B. Judgment on the defendant's misconception of facts or misapprehension of legal principles

(1) Whether there exists “justifiable cause” under the Act on Testimony, Appraisal, etc. before the National Assembly

(A) Relevant provisions of the National Assembly Act on Testimony, Appraisal, etc.

Article 5 (Request for Attendance of Witnesses, etc.)

(1) When a plenary session or committee (including a subcommittee or squad organized for the inspection or investigation of the State administration) requests a report or submission of documents, or requests a witness, appraiser or reference witness to appear under this Act, it shall be issued by the Speaker in the case of the plenary session, and by the Chairperson in the case of a committee or

(3) The request referred to in paragraph (1) shall state the matters to be reported or to be submitted, or the date, time, place, and place of attendance of a witness, appraiser, or reference witness who fails to comply with the request, and shall attach a summary of the examination to the witness and reference witness.

Article 6 (Order of Accompanying of Witness)

(1) If a witness does not attend without any justifiable reason, the committee for inspection or investigation of the state administration (hereinafter referred to as the "committee") may order the witness to accompany to being accompanied to the designated place by resolution.

(2) Upon issuing an order of accompanying under paragraph (1), the chairperson of the Committee shall issue a warrant of accompanying.

Article 12 (Crimes of Absence, etc.)

(1) Any witness, person who refuses a request for submission of a report or document without any justifiable reason, or any witness or appraiser who refuses an oath, testimony or appraisal shall be punished by imprisonment for not more than three years or by a fine not exceeding 10 million won.

- A witness who has damaged the authority of the National Assembly due to violence, intimidation, or other insulting speech or behavior in making testimony at the plenary session or the Committee, or who has refused an order of accompanying or has a third person interfered with the execution of the warrant of accompanying, shall be punished by imprisonment for not more than five years.

(b) the sales board;

"Justifiable reasons" under Articles 6(1) and 12(1) of the Act on Testimony, Appraisal, etc. at the National Assembly refers to cases where a witness appears in the court where the party in question is likely to be arrested as a witness in a criminal trial against another criminal case. Only because the party has the right to refuse to testify can it be deemed that there is a justifiable reason for refusing to appear or to refuse an order of accompanying. Thus, even if the defendant is expected to include the facts constituting an offense, etc. in the trial during the process of witness inspection, the summary of the examination mentioned in the written request for witness attendance is not included in the matters related to the facts constituting an offense in the trial in progress. Even if the defendant makes a statement at the court of the trial of the court of the court of the court of the State administration, the defendant also does not appear to have refused to appear due to recognizing the facts constituting an offense in the trial in progress as a witness in the inspection of state administration or due to his/her testimony, and it does not constitute a new criminal offense. This part of the defendant's right to refuse to testify itself.

(2) Whether it constitutes an error in law

Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable reason for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there is a justifiable reason for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason should be determined depending on whether the act of misunderstanding is not aware of illegality as a result of his failure, even though it could have been able to recognize illegality of his act if the act was done with his intellectual ability and had been able to examine, hear, or inquire about the possibility of illegality of the act of misunderstanding. The degree of efforts necessary for recognizing illegality should be determined differently depending on the situation of the act of misunderstanding, the person's individual awareness ability, and social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006, etc.).

In light of the above facts, it cannot be deemed that the defendant was not subject to punishment for refusal of an order of accompanying, and even if his defense counsel was present at the time when the defendant was absent or was mistaken for not subject to punishment for refusal of an order of accompanying on the ground that there is a concern that the defendant could affect the trial during the period of time, his defense counsel could not be subject to punishment for refusal of an order of accompanying. In other words, the defendant's defense counsel at the time of the inspection of the state administration could not be subject to serious advice about whether the defendant was subject to punishment due to his absence, and the defendant's defense counsel could not be subject to punishment due to his refusal of an order of accompanying, and the defendant's defense counsel could not be subject to punishment for refusal of an order of accompanying even at the time of the execution of an order of accompanying, considering the following circumstances acknowledged by the above facts, the defendant's defense counsel at the time of the inspection of the state administration, and the defendant's defense counsel at the time did not know about the defendant's age or experience due to his refusal of an order of accompanying.

(3) Whether an act was forced or had no possibility of expectation

“Compulsory act” referred to in Article 12 of the Criminal Act refers to an act committed by force of another person, such as imprisoning violence, threat against the person’s body, etc., which cannot be resisted. In this context, imprisonent violence refers to a case where a physical act cannot be absolutely performed in a psychological sense, or where a pressure is made in an ethical sense. Intimidation refers to intimidation in which a person or his/her relatives’ life or body does not have any other way to prevent any harm to the person himself/herself or his/her relatives, and coercion refers to a case where a person makes a specific act by preventing the forced person from making a free decision-making (see, e.g., Supreme Court Decision 2003Do5124, Dec. 10, 2004).

According to the above evidence, the defendant's defense counsel recommended the defendant to the effect that he is not present at the inspection of the state administration, and the prosecutor's side in the pending trial did not want to attend the inspection of the state administration and confirmed the defendant's appearance through his defense counsel. However, the above circumstance alone alone is difficult to deem that the defendant was forced to commit the crime of this case by force or intimidation without any means of resistance or defense, and it is difficult to view that there is no possibility of expectation for lawful act. Thus, this part of the defendant's assertion is without merit.

C. Judgment on the Prosecutor’s misapprehension of the legal principle

Article 12(1) of the Act on Testimony, Appraisal, etc. at the National Assembly is applicable to the crime of paragraph (1) of the judgment below, and its statutory penalty is “a imprisonment for not more than three years or a fine not exceeding ten million won,” and the crime of paragraph (2) of the judgment of the court below is subject to Article 13 of the above Act, and its statutory penalty is “a imprisonment for not more than five years,” and the above facts charged constitute concurrent crimes. Thus, the court below imposed both imprisonment and imprisonment with prison labor and fine on the defendant, while the court below imposed a fine not exceeding five million won on the defendant in violation of the statutes,

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment of the court below is reversed, and it is again decided as follows.

Article 12 (1) (Non-Appearance of Absence) and Article 13 (Refusal of Order of Accompanying)

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Exemption from punishment;

The latter part of Article 39(1) of the Criminal Act

Judges Kim Jong-dae (Presiding Judge)