[1] Whether co-defendants as co-defendants are qualified as witnesses for the part closely related to their charges (negative)

[2] In a case where an employee of a game room was prosecuted for perjury with respect to the facts charged against the game room operator's violation of the Act on the Promotion of Game Industry after being prosecuted as an accomplice for a violation of the Act on the Promotion of Game Industry with the game Industry, and tried as a co-defendant, the case holding that the above employee did not constitute perjury because he was not recognized as a witness

[1] The issue of whether the co-defendant is eligible to be a witness is basically the issue of whether to give priority to any part of the co-defendant's position as the co-defendant who is the co-defendant who has both the status as a party and the status as a third person. As to the statement of co-defendant as the co-defendant is guaranteed the cross-examination right of the other co-defendant, it is not realistic to examine the co-defendant as a witness in order to find the actual truth, so there is no need to hold the co-defendant as witness, and even to the defendant who has the co-defendant's relation with the co-defendant who has common interests between the co-defendants, the defendant's right to defense and right to refuse to make a statement is infringed, and it is unreasonable to recognize that the character of the statement of the same co-defendant or the standing as the witness of

[2] In a case where an employee of a game room was indicted as an accomplice of a violation of the Game Industry Promotion Act with the game room operator and was tried as a co-defendant, and was prosecuted for perjury by taking an oath under the witness's qualification and giving false testimony, the case holding that since the matters asked by a prosecutor or a judge when questioning the said employee as a witness are closely related to the facts charged against the employee, perjury cannot be established because the said employee is not recognized as a witness

[1] Articles 146, 296-2, and 297(2) of the Criminal Procedure Act, Article 152(1) of the Criminal Act / [2] Articles 146, 296-2, and 297(2) of the Criminal Procedure Act, Article 152(1) of the Criminal Act

[1] Supreme Court Decision 83Do2295 delivered on October 25, 1983 (Gong1983, 1792) Supreme Court Decision 2001Do5679 Delivered on August 23, 2002

Defendant

Defendant

Madrified

Suwon District Court Decision 2007Ma3186 decided Feb. 4, 2008

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

The sentence (4 months of imprisonment) of the court below is too unreasonable in light of the fact that the defendant is deeply divided and reflected in the crime of this case.

2. Determination:

Before examining the grounds for appeal by the defendant, we first examine ex officio whether there was a mistake of mistake or misunderstanding of legal principles that affected the result of the judgment of the first instance.

A. Summary of the facts charged

The summary of the facts charged of this case is as follows: “The facts are the actual business owner of the Si/Gu-Eup Mapo-si Mapo-si Mapo-si Mapo-si Mapo-si Mapo-si 2, and the defendant merely managed the above game site, and the proceeds of the above game site were paid to the above non-indicted 1. Although there was no other fact that the non-indicted 2 should manage the proceeds, the defendant's statements were made to the non-indicted 2 as the witness's "the defendant" to the non-indicted 1 in violation of the Act on the Promotion of the Game Industry (hereinafter "2007Ra1764 case") at the court of Sung-gu Mapo-gu Mapo-gu Mapo-si 15:00 on November 9, 2007, which was the center of the Si-nam-si Mapo-si 3, which was the defendant's testimony that the non-indicted 2 will make a false statement to the witness."

B. The judgment of the court below

The court below found the defendant guilty of perjury on the grounds of the defendant's oral statement in the court below, the statement of each prosecutor's office's examination protocol against the defendant, the copy of each protocol of trial in the case of 2007 senior group 1764, the copy of the examination protocol of witness, each entry of the copy of the oath, and the entry of

C. Judgment of the court below

(1) Legal interest

(A) Heading

In the following facts, as the defendant was indicted with Nonindicted 1 as co-offenders in the case of 2007Kadan1764 and was tried as co-defendants, the defendant was adopted as witnesses for the violation of the Act on Promotion of the Game Industry with respect to Nonindicted 1 at the request of the prosecutor and testified in the capacity of witness on the fourth trial date. However, the subject of perjury is "witness", and "witness" refers to "third party" who has stated the past experience in the court or judge. As to the subject of perjury, it is a question whether the co-defendant, such as the defendant, is qualified as witness for the charges of the accomplice who is closely related to the facts charged against him, and whether it is legitimate to examine as witness without separation of pleadings even if there is a eligibility as witness.

(B) Whether the co-defendant is admitted as a witness

1) The attitude of theories and precedents

As to whether Co-Defendant, who is an accomplice, is qualified to be a witness, the theory is divided into the positive and irregular theory, and the compromise theory.The concept of "Co-Defendant" is essentially the result of the joint trial of the case, and the relationship of lawsuit exists individually against each defendant. As Co-Defendant does not lose the third party nature in relation to the above defendant, Co-Defendant in the consolidated trial may also be examined as a witness without separation of pleadings. Since Co-Defendant has the right to refuse to make a statement, unless Co-Defendant is qualified to be a witness and the pleading is separated regardless of whether he is a co-defendant or not, it is qualified to be a witness. Meanwhile, Co-Defendant, who is an accomplice, is not qualified to be a witness, but has no substantial relation with his case, can be examined as a witness without separation of pleadings.

It seems that there is still no clear position in the Supreme Court's decision on this issue. However, in the case of injury crime involving co-defendants who are prosecuted as a witness, the court held that "if a co-defendant gives testimony on the part of the facts charged as a single criminal defendant against the defendant and co-defendants, he cannot be qualified as witnesses because he is not in the position of co-offenders. The judgment of the court below is justifiable." (Supreme Court Decision 2001Do5679 Decided August 23, 2002). The court's decision on the eligibility for witness held that "It is clear that the co-defendants do not exercise the right to refuse to testify as witnesses in the case of the crime of injury involving co-defendants whose interests conflict after being prosecuted as the facts charged and being examined as witnesses, separate arguments about the co-defendants and the examination as witnesses are adopted respectively as witnesses on each of the facts charged, it is not obvious that he adopted as witnesses on each of the facts charged by the defendant, and thus there is no error in the misapprehension of legal principles."

2) an opinion that the trial adopts;

The issue of whether the co-defendant is eligible to be a witness is basically the issue of whether to give priority to any part of the co-defendant's position as the co-defendant who is the co-defendant and has a position as a third party. ① The statement in the court of co-defendant as the co-defendant is admissible as to the facts charged by the other co-defendant, and the protocol of examination of the co-defendant as the co-defendant as the co-defendant prepared by the prosecutor is admissible as to the facts charged by the other co-defendant even if the other co-defendant acknowledges the establishment and voluntariness, even if the other co-defendant as the co-defendant is admitted as evidence, and the cross-examination right of the other co-defendant as to the statement as the co-defendant

② In particular, in the case where co-defendants have common interests as in the instant case, if the co-defendants are recognized to have the character of the defendant, and the right to refuse to make statements are recognized to have the same nature as the defendant, the false statements in the status of the defendant is not subject to punishment, while the false statements in the position of the witness are subject to punishment, so if the defendant who has common interests as above recognizes the eligibility to be a witness, it would be contrary to the fact that our Criminal Procedure Act does not recognize the eligibility to be a witness in order to guarantee the defendant's right to defense and the right to refuse to make statements, and it would be unfair that the court has given up the defendant who has the right to refuse to make statements

(3) Of course, there are legislative cases where the enactment of each state such as the United States, by recognizing the eligibility of a witness as the defendant, so that the accomplice may give testimony as a witness regardless of whether or not he has given a favorable statement to the defendant, or any unfavorable statement to the defendant, regardless of whether or not he has given the approval of the co-defendant. However, even in this case, in order to guarantee the right to refuse the self-contribution of the accomplice under joint trial, he may summon the accomplice as a witness only under his consent so that he does not force the status of the witness, and may be summoned for examination. Under the Criminal Procedure Act of the Republic of Korea, if the accomplice who is the co-defendant is adopted as

④ The same co-defendant’s statement is understood differently as the defendant’s statement or witness’s statement according to a somewhat formal procedure, which means the combination or separation of pleadings. In light of the fact that if the eligibility for co-defendant’s witness depends on the technical procedure, i.e., the combination or separation of pleadings regardless of the substantive relation between co-defendants, it is unreasonable to view that at least the above theory, the co-defendant, who is the accomplice, has no standing for witness, has adopted the defendant as a witness and made the defendant testify without separation of pleadings in the case of No. 2007 Godan1764, supra (as seen in the future, the conclusion that the defendant is not qualified for witness even if he wishes to take an oath and give testimony without separation of pleadings in the case of No. 2007 Godandan1764, which

(2) In the instant case:

(A) Facts of recognition

According to each description of a copy of the protocol of trial (25 to 50 pages of investigation records) in the case of 2007 Godan1764, which was duly adopted and investigated by the court below, the following facts are recognized:

① In the instant case, the Defendant was indicted as an accomplice of a violation of the Game Industry Promotion Act (hereinafter “violation of the Game Industry Act”) on the grounds of criminal facts, such as “the Defendant and Nonindicted Party 1 conspired with the employee of the game room, the Defendant as an employee of the game room, and Nonindicted Party 1 as an operator of the game room without obtaining permission from the competent authority,” and was tried as a co-defendant with Nonindicted Party 1 as a co-defendant.

② The judge in charge of the instant case: (a) made a decision on the separation of pleadings as the Defendant was absent on the first trial date; and (b) made a decision to revoke the said decision on the separation of pleadings and to consolidate pleadings on the second trial date at which the Defendant was present; and (c) made a decision on the recognition and examination of the Defendant and the Defendant. The judge notified the Defendant that he may refuse to make a statement on each of the physical questions; (b) notified the Defendant that “Defendant 1 was not involved in the game room; (c) the Defendant responded to “e.g., the Defendant”; and (d) the Defendant again stated that “the Defendant was “other than the president,” and the Defendant was “I not.”

③ After the third trial date, the Defendant made a statement to the effect that he was the owner of the game room business, as in the second trial date, as seen earlier, the prosecutor did not cross-examine the Defendant, and the judge applied for the witness to Co-Defendant 1 without separation of pleading against the Defendant and Non-Indicted 1. The judge adopted the above witness application from the prosecutor on November 9, 2007, which was the fourth trial date (this fourth trial date was not separated. The arguments are not yet separated even after the fourth trial date adopted and investigated by the court below. However, according to ex officio investigation by the court below, the Defendant did not affix the judge’s seal on the fourth trial date of the case, which was the same contents as the above copy, and the Defendant tried to manage the Defendant’s profits from the game room as in the first trial date, and how the Defendant’s actual operation of the game room was the same as in the first trial date as in the second trial date, and how the Defendant used the game room to manage the Defendant’s profits from the contract.

④ Accordingly, the prosecutor tried to prosecute the Defendant as perjury on the ground that the Defendant appeared as a witness in the above case No. 2007 Godan1764 and testified after being sworn.

(b) the sales board;

In light of the above legal principles, it seems unfair to recognize the defendant's eligibility to be a witness when examining the following circumstances acknowledged in the above facts.

① On the third trial date of the above case, the prosecutor appears to have not been necessary to apply for a witness again since the defendant's assertion (the defendant's assertion that he is the actual operator of the game room) through cross-examination after the examination by the defense counsel against the defendant on the third trial date of the above 2007 Godan1764 case was possible. Nevertheless, the prosecutor's motion for the defendant as a witness is bound to give warning that he would be punished for perjury and forced the defendant to make a true statement. However, this cannot be said to have infringed the defendant's right to refuse to make a statement because he forced the defendant who is in the position of co-defendant 1

② In addition, the questions asked by a prosecutor or a judge during the fourth trial to the defendant as witness are not related to the matters related to the sole criminal conduct of Nonindicted Party 1 or to the separate part unrelated to the defendant's crime, but those closely related to the defendant's own charges, and thus, the defendant's right to refuse to make statements and right to defend himself/herself. In other words, even if the defendant was notified of the right to refuse to make statements on the second trial date and makes a false statement on the second trial date, he/she did not be subject to any sanctions in order to guarantee the right to defend himself/herself. In other words, on the second trial of the second trial of the second trial, he/she was placed in the situation where he/she was punished for perjury, which is almost similar to the matters examined by a judge (whether the defendant is an actual game operator). This is unreasonable in that it is compatible with the status of the defendant as a witness, which cannot be compatible with the current criminal procedure under the Criminal Procedure Act. This also contradicts the defendant's demand to waive the right to refuse to make statements and compel the truth by taking an oath.

③ Moreover, the judge in the case of the 2007 Godan1764 did not separate the pleadings against the Defendant and Nonindicted Party 1, and adopted the Defendant, who is the Nonindicted Party 1 and the co-defendant 1, as a witness, to take an oath, and made the Defendant testify. Thus, even if based on the foregoing theory, the Defendant is not eligible for witness.

④ Of course, there may be questions as to whether the Defendant could not punish the Defendant as perjury in order to guarantee the right to refuse to make a statement even in such a case, because the Defendant, beyond refusing to make a statement, concealed the circumstance that he is not an actual operator, and actively made a false statement. However, if the Co-Defendant, who is an accomplice, can be forced to make a statement under the sanction on perjury by undergoing a witness examination as to the facts closely related to his charges, the Defendant would be unable to properly exercise the right to refuse to make a statement and the right to defend himself, which is naturally guaranteed, even when he makes a statement on his facts charged in court. The above opinion of the theory of denying a statement or the theory of loyalty is likely, so if it is closely related to his facts charged, the eligibility for a witness should be denied.

In the end, the defendant in this case is deemed to have taken an oath and testified without standing as witness in this case, if he does not take a positive theory that has not been adopted almost at present in our theories or precedents, and is based on the compromise theory and the theory that is absolute majority.

(C) Conclusion

Ultimately, in the case of the defendant who was prosecuted as the co-defendant 1 and the co-defendant, the eligibility for witness is not recognized. Accordingly, even if the defendant testified and made a false statement after taking an oath as a witness on the fourth trial date of the case 2007 Godan1764, he does not constitute perjury, and there is no other evidence to prove the facts charged, and even though the defendant case in this case appears to fall under the case without proof of facts charged, the court below found the defendant guilty of perjury. Thus, the court below erred by misunderstanding the facts

3. Conclusion

Therefore, the judgment of the court below can no longer be maintained without determining the grounds for appeal by the defendant. Thus, the judgment below is reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act, and it is again decided as follows.

"The summary of the facts charged in this case against the defendant is the same as that of Paragraph 2. A. (c) and as examined in Paragraph 2.c., there is no evidence to acknowledge the facts charged in this case, so the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is announced in accordance with Paragraph 2 of Article 58 of the Criminal Act."

Judges in writing (Presiding Judge)