[1] Whether perjury is established in a case where it can be deemed that the exercise of the right to refuse to testify is a de facto obstacle due to failure to be notified of the right to refuse to testify in the absence of the right to refuse to testify (negative)

[2] The case denying the establishment of perjury in a case where Gap's gambling in a private relationship caused a ground for refusing to testify and makes a false statement without being notified of the right to refuse to testify by the presiding judge even though he had not been notified of the right to refuse to testify

[1] Article 152(1) of the Criminal Act; Articles 148, 149, 150, and 160 of the Criminal Procedure Act / [2] Article 152(1) of the Criminal Act; Articles 148, and 160 of the Criminal Procedure Act

[1] [2] Supreme Court en banc Decision 2008Do942 Decided January 21, 2010 (Gong2010Sang, 465) Supreme Court Decision 2007Do6273 Decided February 25, 2010

Defendant

Prosecutor

Jeju District Court Decision 2009No404 Decided November 5, 2009

The appeal is dismissed.

The grounds of appeal are examined.

The system of the right to refuse to testify provides a witness with the right to refuse the performance of the duty to testify, and the system of notification of the right to refuse to testify under the Criminal Procedure Act provides a witness with sufficient opportunity to consider whether the existence of such right is implied or to make a statement. In light of the fact that the notification system of the right to refuse to testify is intended to guarantee the right to impliedly by providing the witness with sufficient opportunity to consider whether the right to refuse to testify exists or to make a statement, even in a case where the presiding judge has not notified 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 testimony, the existence of the right to refuse to testify, whether the witness already knows the reason for refusal of testimony or the right to refuse to testify, and 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. Therefore, the Supreme Court en banc Decision 201Do2094 Decided, 2010.

According to the reasoning of the judgment below and the records of this case, at around 14:00 on December 2, 200, the defendant appeared as witness of the defendant's violation of the Tourism Promotion Act against Non-Indicted 1 and one other in the above court No. 2008Da7777, 1061 (merger) at the Jeju District Court No. 202 on the same date. In the case of violation of the Tourism Promotion Act, the issue was whether Non-Indicted 2, a national, entered a casino with limited entry into the casino and went for gambling was whether Non-Indicted 2 did not have entered the above casino, but the prosecutor denied the crime by asserting that Non-Indicted 2 did not have been punished for gambling, and Non-Indicted 2 and the defendant did not appear in the court for the purpose of proving that he had been subject to punishment for gambling, and the defendant was also asked by the public prosecutor that he had been asked about the above facts that he had been asked by the non-Indicted 2 before being asked about the non-Indicted 2's testimony.

In light of the above facts, although the defendant was not the defendant case against the non-indicted 2, most of the testimony made by the non-indicted 2 was about whether the non-indicted 2 had been stuffed in the above casino, which is about the possibility that the criminal prosecution or prosecution might be brought about due to the crime of gambling. The non-indicted 2's failure to appear as a witness and the defendant made the testimony of this case in accordance with the prosecutor's request for witness and examination. The first head of the testimony made the defendant's statement that the non-indicted 2 had a private relation with the non-indicted 2's gambling, and the defendant made the false statement of this case without being notified by the presiding judge of the right for refusal of witness at the time of the testimony of this case. Thus, the court below's decision that the defendant cannot be held liable for perjury in light of the above legal principles, and there is no violation of law as to the scope of perjury, such as misapprehension of legal principles as alleged in the ground for appeal.

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

Justices Park Si-hwan (Presiding Justice)