Defendant

Defendant

Special Prosecutor Park Jong-young ( Prosecution), special prosecutor senior civil servant, dispatched public prosecutor senior civil servant, promotion, and on-site public trial

Law Firm each other, Attorney Final Won

Seoul Central District Court Decision 2017Gohap188 Decided May 18, 2017

The judgment of the court below is reversed.

The prosecution of this case is dismissed.

1. Summary of grounds for appeal: Unfair sentencing

In addition to the instant perjury, the Defendant faithfully responded to the relevant question at the hearing of the investigation of the instant case. The replacement of the Defendant’s handphone was not to conceal the relationship between the Defendant and Nonindicted Party 1 (○○○○), etc. on August 2016, which was before the so-called suspicion case was first reported from the media. Moreover, Nonindicted Party 6 and Nonindicted Party 4’s preferential business treatment in the relationship with the △△△△△ Hospital is difficult to deem that the Defendant introduced Nonindicted Party 4 to Nonindicted Party 2. Such circumstances and other circumstances are difficult to deem that the Defendant led to the perjury, the background leading up to the instant perjury, the disadvantage of the Defendant’s status when the Defendant would be subject to the suspension of execution, his family relationship, and all the sentencing factors, including the Defendant’s family relation, are too unreasonable.

2. Ex officio determination of the legality of the indictment procedure of this case

A. The defense counsel asserts to the effect that, in the written opinion submitted after the expiration of the period for submitting the statement of grounds for appeal, an accusation, which is an element for indictment for the instant crime, is unlawful, the judgment of the court below shall be reversed and the instant indictment shall be dismissed. The above argument is not a legitimate ground for appeal, but it is ex officio to determine the legality

B. Relevant provisions

Article 15 (Accusation) (1) If the plenary session or the committee deems that a witness, appraiser, etc. has committed an offense under Article 12, 13, or the main sentence of Article 14 (1) in the name of the chairperson, it may file an accusation under the joint signature of at least 1/3 of the committee members in the case of incumbent members of a hearing. (1) The National Assembly recognizes that a witness, appraiser, etc. has committed an offense under Article 12, 13, or the main sentence of Article 14 (1) before the current amendment of the Table included in the main sentence, it shall file an accusation: Provided, That if the plenary session or the committee deems that a witness, appraiser, etc. has committed an offense under Article 12, 13, or the main sentence of Article 14 (1) in the name of the chairperson, appraiser, etc., the plenary session or the committee may not file an accusation, notwithstanding the proviso to Article 16 (2).

C. Determination

The main text of Article 15(1) of the Act on Testimony, Appraisal, etc. at the National Assembly (hereinafter “National Assembly Testimony Act”) imposes an obligation of accusation on the plenary session or committee with respect to an accusation against perjury under Article 14(1) of the same Act. This purport is to ensure that a punishment for perjury in the National Assembly is entrusted to the autonomous authority of the National Assembly, and such accusation is prescribed as an element for indictment against perjury (see Supreme Court en banc Decision 65Do826, Dec. 10, 1965).

However, the main text of Article 15(1) of the National Assembly Testimony Act imposes an obligation to prosecute perjury under Article 14(1) of the National Assembly Testimony Act on the plenary session or the committee, and Article 15(3) of the same Act requires the plenary session or the committee’s chairperson to file a complaint under the name of the plenary session or the committee’s chairperson. As an exception to this, in the case of a hearing under the proviso of Article 15(1) of the same Act, a complaint may be filed under the joint signature of at least 1/3

As can be clearly known by the language and text of the proviso of Article 15(1) of the National Assembly Testimony Act, the term “refinite member” who may file an accusation under the same Act refers to a member of the relevant committee at the time of filing the accusation. Therefore, in cases where a special committee holds a hearing on a witness who raised an accusation, if the relevant special committee holds the hearing on the witness who raised an accusation, the term “refinite member” of the relevant special committee may no longer exist. Thus, the accusation under the proviso of Article 15(1) of the National Assembly Testimony Act shall be deemed to be possible only during the existence of the relevant special committee. On the contrary, it is difficult to interpret the term “refinite member” as including “refinite member at the time of filing the accusation” of a witness at the hearing, and interpret the term “confinite member at the time of filing the accusation” as “confinite member at the time of filing the accusation” under the proviso of Article 15(1) of the National Assembly Testimony Testimony Act, even if the relevant special committee does not at the standing committee at the time of accusation.

This is true in light of the fact that a special committee’s accusation under the name of the chairperson under the proviso of Article 15(1) and Article 15(3) of the National Assembly Testimony Act requires a special committee’s resolution on the accusation, and the resolution of the special committee is premised on the existence of the relevant special committee. As such, in a situation where the special committee no longer exists, the resolution on accusation is impossible as a matter of course, and thus, an accusation by the chairperson cannot be made under the name of the committee. If the special committee no longer exists, it is reasonable to make it impossible to file an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act, like the impossibility of filing an accusation under the main sentence of Article 15(1) of the same Act. In such a case, granting an exceptional accusation under the name of the incumbent committee members under the proviso of Article 15(1) of the National Assembly Testimony Act would have to allow the committee’s accusation under the name of the chairperson even in cases where the committee does not continue to exist under the same name, it would be difficult to allow the committee’s accusation under the same effect.

On the other hand, the National Assembly Testimony Act or Personnel Hearing Act contains several amendments that enable the Commission to file an accusation against perjury even after its dissolution, and such amendments also support such interpretation.

It is difficult to view otherwise solely on the grounds that there is a strict need to interpret the statutory provisions that stipulate the requirements for indictment against punishment may require considerable time to recognize the offense of perjury due to the nature of perjury. In addition, in cases where a person who committed perjury makes a confession before the completion of inspection or investigation of the state administration, the punishment may be mitigated or exempted, and the said provision does not conflict with the prior interpretation of the proviso of Article 15(1) of the National Assembly Testimony Act. In other words, granting benefits, such as reduction of or exemption from punishment for perjury, exemption from obligation to file an accusation, etc., to ensure that it becomes possible or impossible for him/her to make a confession or accusation pursuant to the proviso of Article 14(1), the proviso of Article 14(2), Article 15(2), and Article 15(2) of the National Assembly Testimony Act to ensure that the relevant special prosecutor’s accusation cannot be made immediately before the inspection or investigation of the state administration is made, and thus, it does not constitute a direct confession or confession for the special prosecutor to the effect that the confession or accusation would not exist before the special prosecutor’s or accusation.

On the premise of the interpretation of the relevant provisions, the instant accusation against the Defendant was filed on February 12, 2017 with the joint signature of the members of the National Assembly on February 13, 2017, which was after the date of the hearing where the Defendant testified by the Defendant, “the Special Committee on the Investigation of State Affairs by Private Sector, such as ○○○○○, etc., the Government of Park Jong-Hy-Hye Government,” which was no longer continued to exist. As such, the instant accusation cannot be deemed a lawful accusation pursuant to Article 15(1) of the National Assembly Testimony Act, and even according to the record, there is no other evidence to prove the fact that a legitimate accusation against the instant facts charged was made. Accordingly, the instant indictment is unlawful because the indictment of this case was defective, and thus, the judgment of the court below that found the Defendant guilty cannot be exempt since it was unlawful.

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for appeal, and the judgment below is reversed, and it is again decided as follows after pleading.

The defendant is the father and the professor of △△ Hospital in △△ Hospital.

Around 204, the Defendant came to know Nonindicted 1 (○○ prior to the opening of the name), who was the guardian of Nonindicted 13, in the course of treating Nonindicted 13, who was located in △△△ Hospital, around 2004. After that, Nonindicted 1 also came to receive medical treatment from the Defendant, Nonindicted 1 was aware that she is in a close relationship with the President of the Park Hy-Hy, and Nonindicted 1 was in close contact with Nonindicted 1 during June 2014, and on July 2014, when Nonindicted 1 was in close contact with Nonindicted 1, who was asked about the father and the doctor of the △△△△△△△△ Hospital, who was engaged in academic activities related to the father and the father of the △△△△△△△△ Hospital, and Nonindicted 2, who was appointed as the President, and immediately thereafter, reported that Nonindicted 2 was appointed to the Minister of Education through the Minister of Health and Welfare’s recommendation on the relationship between Nonindicted 1 and the President, and the Minister of Education from around 16 June 214, 2016.

On May 2015, the Defendant: “Around May 2015, there was a company manufacturing and delivering a room used for the appearance, and at △△△△ Hospital, there was a request to find out whether the room can be used; Nonindicted 4, the representative of Nonindicted 3 Stock Company, was contacted with Nonindicted 2; around that time, the contact was made with Nonindicted 2, who was in turn used for the appearance, and was able to connect Nonindicted 4 with the sexual appearance of △△△△△△△△△ Hospital because there was a lot of interest in the presidential thickness, and it was good for Nonindicted 2 to communicate and introduce the contact with Nonindicted 4.

Nevertheless, on December 14, 2016, the Defendant appeared and taken an oath as a witness of the Special Committee on Investigation of the State's Cruel Cases by Civilians, such as ○○○○○, etc. of the Park Jong-Hye Government, which is held in Seoul, as the doctor of Yeongdeungpo-gu Seoul National Assembly, on December 14, 2016, the Defendant testified that “I do not seem to have any doubt,” and “I would like to give testimony that I introduced Nonindicted 6 and Nonindicted 4 to Nonindicted 5’s members before the Special Committee on Investigation of the State’s Cruel Cases? I would not have any way to introduce Nonindicted 2,” and “I would like to give testimony that I would not have any way to call Nonindicted 2.”

Ultimately, the Defendant made a false statement as a witness who has taken an oath under the Act on Testimony, Appraisal, etc. at the National Assembly.

The above facts charged are crimes falling under Article 14(1) of the Act on Testimony, Appraisal, etc. at the National Assembly, which can be prosecuted only when an accusation is filed under Article 15(1) of the same Act, and there is no evidence to acknowledge that a legitimate accusation has been made as seen earlier.

Thus, the prosecution procedure in this case is invalid because it constitutes a violation of the provisions of law, and the prosecution is dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

Judges Cho Young-chul (Presiding Judge)

1) The Supreme Court’s decision pertains to the main sentence of Article 10(1) of the former Act on Testimony and Appraisal of National Assembly (wholly amended by Act No. 4012, Aug. 5, 1988). This purport is the same as the main sentence of Article 15(1) of the current Act on Testimony and Appraisal of National Assembly.

2) It is apparent in that Article 15(2) of the National Assembly Testimony Act provides that a confession of perjury may not be made in the event that an accusation is made under Article 14(1) of the same Act. If an accusation is not a requirement for prosecution, the provision that allows a confession of perjury would not have any particular meaning.

3) Article 44(3) of the National Assembly Act provides that “Special Committee shall continue to exist until the expiration of the term of activity: Provided, That where a request for examination of systems and wording is made to the Legislation and Judiciary Committee pursuant to Article 86 or a report on examination is submitted pursuant to Article 66, it shall be deemed to continue to exist until the relevant agenda is resolved at the plenary session.”

Note 4) In other words, even if an accusation is made under the name of a member of the National Assembly who was a member of the relevant Special Committee due to the termination of the special committee’s activity period, such accusation is merely an accusation in the individual member’s qualification, and cannot be deemed to be an accusation by the said Special Committee’s member.

5) At the time of testimony of a witness, a member who was a member of the Standing Committee at the time of testimony may not be a member of the Standing Committee at the time of accusation on the grounds of resignation or expiration of the two-year term of office (see Article 40

(6) In principle, the quorum of the committee under the National Assembly Act is the attendance of a majority of the incumbent members and the affirmative votes of a majority of the present members (Article 54

7) Such legislative intent also reveals the reason for the proposal of the amendment bill on the above provision (hereinafter “in order to ensure the effectiveness of inspection and investigation of the state administration, the punishment for witnesses, etc. who have been absent or refused to testify at a hearing, and the requirement for accusation against witnesses who have been absent or given testimony at a hearing,” and Nonindicted 7 members’ remarks (in the case of accusation against witnesses who have been absent or given the absence at the hearing or given testimony at the meeting of the National Assembly, the requirement for accusation was mitigated by allowing not only the resolution of the Committee but also the name of the members of the Committee by means of a joint signature of at least 1/3 of all incumbent members, so that the accusation requirement may be filed in the name of the members of the Committee.”

(4) If a false statement of a member is discovered after the dissolution of the Committee under Article 21(2) of the Personnel Hearing Act, the Committee may file a complaint under the joint signature of at least 1/4 of all incumbent members of the National Assembly (which shall be deemed to have been signed jointly by at least 1/10 of the incumbent members of the National Assembly). Article 21(2) of the same Act provides that “If a candidate for public office is found to have been dissolved, the Committee may file a complaint under the joint signature of at least 1/10 of all incumbent members of the National Assembly.”

9) If the special prosecutor cannot be punished for perjury after the inspection or investigation of the state administration is completed, he/she asserts that there is no reason to establish a provision that the punishment may be mitigated or exempted only when a confession is made before the inspection or investigation of the state administration is completed. However, even in cases where a confession is made after the inspection or investigation of the state administration is completed, even if it is impossible to file a complaint with the special committee, it is possible to file a charge for perjury at least at a standing committee that is not the special committee or a hearing held at the plenary session, and therefore, the provisions such as the reduction

10) A person who made a confession prior to the expiration of the statute of limitations for perjury can be punished, and a person who did not prosecute because he/she failed to make a confession by the expiration of the statute of limitations is unable to be punished. This is the same as the statute of limitations itself cannot be deemed inappropriate for this reason.

Note 11) Although the duration of the instant committee’s activities at the plenary session of the National Assembly set the period from November 17, 2016 to January 15, 2017, the instant committee continued to exist until January 20, 2017 pursuant to Article 44(3) of the National Assembly Act, given that the outcome of the investigation was decided at the plenary session of the National Assembly held on January 20, 2017.

Note 12) The date of accusation stated in the accusation is February 27, 2017. However, the date on which the actual accusation was received by the special prosecutor is February 28, 2017 (Evidence Records 11012 pages).