[1] The method of determining whether testimony in perjury constitutes a false statement contrary to memory

[2] The case reversing the judgment of the court below on the ground that it is difficult to readily conclude that testimony is false

[1] Whether a witness's testimony is a false statement contrary to memory or not shall be judged by understanding the whole of the testimony during the examination procedure in question as a whole, not a simple part of the testimony, but rather a whole of the testimony in question. Even if the whole purport of the testimony is consistent with objective facts and it is inconsistent with his memory, if it is caused by damage to or mistake of the purpose of the examination, it cannot be a perjury.

[2] The case reversing the judgment of the court below on the ground that the court below which recognized perjury was committed through incomplete hearing or mistake of facts although it was difficult to conclude that testimony was false statements

[1] Article 152 (1) of the Criminal Act (amended by Act No. 5057 of Dec. 29, 1995) / [2] Article 152 (1) of the Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 89Do1748 delivered on September 14, 1982 (Gong1982, 973), Supreme Court Decision 89Do1748 delivered on May 10, 1991 (Gong1991, 1674), Supreme Court Decision 93Do1744 delivered on June 29, 1993 (Gong193Ha, 2203), Supreme Court Decision 93Do1743 delivered on September 14, 1993 (Gong193Ha, 2847), Supreme Court Decision 93Do425 delivered on September 28, 1993 (Gong193Ha, 307), Supreme Court Decision 92Do31949 delivered on April 26, 1994 (Gong1993Ha, 307).

Defendant

Defendant

Attorney Kim Hyun-soo

Seoul District Court Decision 95No780 delivered on November 1, 1995

The judgment of the court below is reversed and the case is remanded to the Seoul District Court Panel Division.

The grounds of appeal by the defendant and his defense counsel are also examined.

1. The court below affirmed the judgment of the court of first instance which convicted the defendant as to the whole facts charged. With respect to the site and its ground building located in Songpa-gu Seoul Metropolitan Government (hereinafter the real estate in this case), the contents of testimony as to the defendant's husband, in the first instance court of the lawsuit claiming the transfer of ownership based on the title trust filed against the non-indicted 2, the father of the above non-indicted 1, who is the father of the above non-indicted 1, and the non-indicted 3, 4, and 5, who is his birth, filed against the non-indicted 3, 5, etc. who is his birth (hereinafter the "civil lawsuit"), it is obvious

2. As to the facts charged Nos. 1, 3, and 4

A. Whether a witness's testimony constitutes a false statement contrary to memory or not shall be determined by understanding the whole of the testimony during the relevant examination procedure as a whole, rather than the part of the witness's simple statement. Even if the whole purport of the witness's testimony is consistent with objective facts and it is inconsistent with his memory, if it is caused by an injury or mistake in the purpose of examination, it cannot be a perjury (see, e.g., Supreme Court Decisions 81Do105, Sept. 14, 1982; 94Do1790, Dec. 22, 1994).

B. Recognizing the record, the background leading up to the defendant's appearance as a witness of the plaintiff's civil procedure is as follows.

From 1956. to 1960., from 1966. to 1960, Non-Indicted 1, the husband of the defendant, who is the plaintiff's husband of the civil lawsuit, continued to conduct the business until the opening of the Osung 1964. The real estate of this case was purchased on the same company's own money because it was leased one corner of the Embry Conference next to the South Seodaemun market freedom department store and continued to maintain the livelihood of the family members with the general miscellaneous image continuously. The real estate of this case was purchased on the basis that it was purchased on its own money and it was in around 1964.

As to this, the defendant's side of the civil lawsuit brought about by the deceased non-indicted 2 (the deceased on May 1, 1991, which was immediately before the judgment of the first instance in the civil lawsuit was pronounced), he operated the above non-indicted 6 (the deceased on July 26, 197) and the above non-indicted 1 (the deceased on May 1, 1991, which was before the judgment of the first instance in the civil lawsuit was handed down in Seoul, and managed the profits earned from the above non-indicted 1 from around 1983. The real estate of this case also purchased the profits of the community life managed by the above non-indicted 1 as the proceeds of the community life managed by the above non-indicted 1, but it asserted that the deceased non-indicted 2 was not the sole ownership of the above non-indicted 1, but the co-ownership of all of his family members. The deceased non-indicted 6 (the deceased on July 26, 1974) and the above non-indicted 1, the male non-indicted 1 and the above non-indicted 4 and 5.

In the first instance trial of civil procedure, the defendant's witness proved the facts of both parties' arguments, as a witness of the first instance trial, was guilty of the Kim Jong-tae as stated in paragraph (5) of the facts charged and of paragraph (6) of the facts charged, and the plaintiff's side was able to pay the defendant each. When the defendant testified that the above Kim Kim-type, which he testified before the defendant's testimony, was consistent with the facts of the defendant's assertion, such as testimony to the effect that the name of the business operator of the Austria meeting was in the name of the deceased non-indicted 2, the defendant, again, testified the contents of the testimony of the above two witnesses, and he testified that the Austria was operated entirely by Non-indicted 1 and that the deceased non-indicted 2 or other families were not involved

C. According to the records, as to paragraph (1) of the facts charged based on the above facts, it is thought that the above non-indicted 1 was running primarily on the ground that the non-indicted 2's 5-son 7, who attended the front and the night session, was able to see the fact that the non-indicted 1 was able to see the fact that the non-indicted 2's 5-son 7, the above non-indicted 1 appeared to have been able to see the fact that the non-indicted 1 was able to see the fact that the non-indicted 1 had been able to see the fact that the non-indicted 1 had been able to see the fact that the non-indicted 1 had been able to see the fact that the non-indicted 1 had been able to see the fact that the non-indicted 1 was able to see the above non-indicted 1's 196-party 1's 196-party 2's 196-party 2's 19.

D. Next, as to paragraph (3) of the facts charged, the defendant stated in the facts charged that the non-indicted 4 was in a state of unemployment during the period from the main examination of the plaintiff's attorney for the civil procedure to the time when the fire occurred while closing down around June 1975, the non-indicted 1 made the above non-indicted 4's statement to the non-indicted 4's family's view that the above non-indicted 4's testimony was sufficient and consistent with the above non-indicted 4's daily living expenses and money for the defendant's family members during that period, and that the non-indicted 4's statement to the non-indicted 4's defendant's non-indicted 4's defendant's non-indicted 4's non-indicted's non-indicted 4's non-indicted 1's statement to the effect that the above non-indicted 4's non-indicted 4's non-indicted 4's statement to the defendant's office's non-indicted 4's non-indicted 4's above testimony.

E. Finally, with respect to the facts charged as to the facts charged as to whether Nonindicted 7 assisted the same company operated by the said Nonindicted 1 from February 197 to August 1979, the Defendant testified to the effect that, during the above period, the above Nonindicted 7 attempted to go to the same company and work, and that, during the above period, the Defendant 7 attempted to go to the same company. The Defendant testified to the effect that, while trying to go to work, the above Nonindicted 4, which is the punishment of the above Nonindicted 7, and dried off and taken over the above awareness points around May 1979. According to the records, it was recognized that the above Nonindicted 7 helps the above Nonindicted 4's work and taken over the warning points around February 1979 without doubt, and that the Defendant's testimony was sufficient to help the above testimony to the effect that the whole witness's testimony was the same during the above period in light of the empirical rule, and thus, it is reasonable to view the above part of the witness's testimony to the effect that the above testimony was made during the above period of the first instance.

F. Thus, the part of the judgment of the court below as to Article 1, 3, and 4 of the facts charged is erroneous in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles on perjury. Therefore, there is a reason to point out this.

3. As to the indictment No. 2

According to the record that the name of the business operator of the sexual council from 1967 to 1972 was the deceased non-indicted 6's future, it is apparent that the above non-indicted 6, who was submitted with documentary evidence, was liable for business income tax. However, according to the record, the above documentary evidence was submitted by the defendant after the defendant testified, and at the time the defendant testified, the defendant is also aware of the fact that the name of the business operator of the sexual council was in front of the deceased non-indicted 2, and only the above non-indicted 1's current account transaction agreement and the receipt that the above non-indicted 1 was liable for tax payment, which was presented by the plaintiff, were present in the oral argument. As seen above, in light of these circumstances and the circumstances that the above non-indicted 1 was operated mainly in the sexual council, it cannot be concluded that the testimony of the plaintiff non-indicted 1 was false during the above two documentary evidence submitted by the defendant, and the testimony of the non-indicted 1 was made.

Therefore, the judgment of the court below on the above part of the facts charged is difficult to avoid criticism that there is an error of law that misleads the facts against the rules of evidence.

4. As to the facts charged under Articles 5 and 6

According to the records, the part of the testimony made by the above non-indicted 2 and his family members prior to the defendant's testimony was made in detail consistent with the defendant's assertion. However, the part of the testimony made by the above non-indicted 2 prior to the defendant's testimony concerning the living conditions of his family is different from the facts of the defendant's assertion. In addition, the part of the testimony made by the above non-indicted 2 and his family members for a considerable period of time, and the above non-indicted 2, who did not have any contact with the deceased non-indicted 2, could know about the above testimony. Thus, the part of the testimony made by the above non-indicted 2 and his family members prior to the above time of 1970 that the defendant knew the deceased non-indicted 2 and his family members, on the other hand, it is difficult to readily deny its credibility because the part concerning the circumstance in which the defendant's testimony of the above non-indicted 2 became aware of the above defendant's testimony was consistent with the objective evidence of this case's testimony.

Therefore, the judgment of the court below as to the above part of the facts charged is not fully examined or there is an error of law that misleads the facts against the rules of evidence.

5. Therefore, the judgment of the court below shall be reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)