[1] The standard for determining whether perjury is established where a witness makes a false statement without notifying the right to refuse to testify

[2] In a case where a person who did not commit a crime was prosecuted as a criminal, thereby falsely0 the facts of the crime in the status of the defendant, and further made a false statement that he/she committed a crime with an accomplice when he/she testified in the capacity of witness as an accomplice, whether the right to refuse to testify

[3] In a case where a co-defendant who is an accomplice deviates from his/her position as the defendant by separating litigation procedures, whether he/she is qualified as a witness to the facts charged against another co-defendant

[1] Article 12(2) of the Constitution of the Republic of Korea; Article 152(1) of the Criminal Act; Articles 148 and 160 of the Criminal Procedure Act / [2] Article 152(1) of the Criminal Act; Article 148 of the Criminal Procedure Act / [3] Article 152(1) of the Criminal Act; Article 146 of the Criminal Procedure Act

[1] [3] Supreme Court Decision 2009Do11249 Decided March 29, 2012 / [1] Supreme Court en banc Decision 2008Do942 Decided January 21, 2010 (Gong2010Sang, 465), Supreme Court Decision 2007Do6273 Decided February 25, 2010 (Gong2010Sang, 690), Supreme Court Decision 2009Do13257 Decided February 25, 2010 / [3] Supreme Court Decision 2008Do300 Decided June 26, 2008 (Gong2008Ha, 1487)

Defendant

Defendant

Law Firm 000,500

Suwon District Court Decision 2010No301 Decided July 16, 2010

The appeal is dismissed.

1. Every citizen shall not be forced to make a statement unfavorable to himself/herself (Article 12(2) of the Constitution of the Republic of Korea), and thus, he/she may refuse to testify that may cause a prosecution or conviction against him/her (Article 148 of the Criminal Procedure Act). The presiding judge shall explain in advance that such testimony may be refused and notify the right to refuse to testify before he/she examines the witness (Article 160 of the Criminal Procedure Act). Nevertheless, if he/she made a witness to give a testimony without notifying the right to refuse to testify, the statement is not a statement of “a witness who has taken an oath by law” under Article 152(1) of the Criminal Act, and thus, even if the statement is false, it cannot be punished for perjury.

However, the system for the right to refuse to testify provides a witness with the right to refuse to perform the duty to testify, and the system for the notification of the right to refuse to testify under the Criminal Procedure Act provides a witness with an opportunity to consider whether the existence of such right is implied or to make a statement by providing him/her with an opportunity to consider whether the right to refuse to testify exists. In light of the above, even in cases where the presiding judge fails to notify the right to refuse to testify before being examined, the establishment of perjury should be determined based on the whole and comprehensive consideration of the specific situation of the witness at the time of testimony in question, the reason for refusal of witness, the contents of the reason for refusal of witness, whether the witness already knows the reason for refusal of witness or the existence of the right to refuse to testify, whether there is any circumstance to deem that the witness made a false statement even after being notified of the right to refuse to testify, etc. (see, e.g., Supreme Court en banc Decision 2008Do942, Jan. 21,

Meanwhile, the Criminal Procedure Act provides for the right to refuse to testify as above includes not only the fact that the person himself/herself has committed a crime but also the fact that is likely to have been convicted of having committed a crime. Therefore, even in cases where a person who failed to commit a crime is indicted as a criminal, and makes a false statement that he/she committed a crime with his/her accomplice while giving testimony in the capacity of witness as to an accomplice, the testimony shall be subject to the right to refuse to testify as it increases the fear of conviction against him/her. However, in such cases, the statement that he/she did not commit a crime and the original form of the right to refuse to give testimony is considerably different from that of the original form of the right to refuse to give testimony, which should be considered as an important factor in determining whether he/she refused to give testimony if he/she is notified of the right to refuse to give testimony, i.e., whether the right to refuse to give testimony may be deemed as a de facto obstacle to the exercise of the right to refuse to give testimony.

2. On the other hand, co-defendants cannot be a witness to the facts charged against other co-defendants in the pertinent litigation proceedings, but if the litigation proceedings are separated and so they go beyond the defendant's status, they can be a witness to the facts charged against other co-defendants (see Supreme Court Decision 2008Do3300, Jun. 26, 2008, etc.).

3. The court below acknowledged the following circumstances acknowledged by the evidence, i.e., (i) the defendant was notified of the right to refuse to make statements at the time when he/she was examined several times in the case with murder; (ii) the defendant made a false confession with the same content as the defendant before a request for detention warrant was made; and (iii) the defendant made a statement as the defendant at court before the fourth court date of the murder case where he/she made testimony; and (iv) continuously made a false statement at the time after the date he/she made testimony; and (iii) the defendant made a false statement at the time of murder with the investigative agency to the court below, despite the fact that there was threat or pressure of the investigative agency at the time of murder; (iii) there was no evidence that the defendant continued to make a false statement at court because of the threat or pressure of the investigative agency at the time of murder; (v) the defendant, who was the police officer at the time, did not appear to have been aware of the fact that he/she did not have any inconsistency with the objective evidence that he/she had been aware of the defendant’s testimony at the time he/she had been found guilty during the trial or testimony.

In light of the above legal principles and records, the judgment of the court below is just and acceptable, and there is no illegality that affected the conclusion of the judgment by misapprehending the legal principles on the right to refuse to testify and the right to be a witness of the co-defendant, as alleged in the

4. The appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)