[1] Whether a provision of Article 14(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly is against the principle of liability or the principle of equality to prescribe the statutory penalty higher than that of perjury under the Criminal Act (negative)

[2] Whether Article 160 of the Criminal Procedure Act, which provides a notice of the right to refuse to testify, applies by analogy to the "Act on Testimony, Appraisal, etc. at the National Assembly" (negative)

[3] The purpose of Article 5(3) of the Act on Testimony, Appraisal, etc. before the National Assembly, stipulating that this witness shall be notified of the summary to be examined, and the legal nature of Article 5(4) of the same Act stipulating the period for serving a summons by a witness, etc., and whether a witness who has attended the National Assembly and made a false statement may be punished as a violation of the same Act even if the above provisions are not complied with (affirmative)

[1] The issue of how to punish a certain crime is, namely, how to determine the type and scope of statutory penalty is to be in violation of the Constitution and the principle of proportionality, unless it clearly violates the principle of equality and the principle of proportionality, such as the nature of a crime and the protection of legal interests, as well as the consideration of our history and culture, the current situation at the time of legislation, the general sense of values or legal sentiment of the people, and the criminal policy aspects for crime prevention. Therefore, a broad legislative discretion or freedom of formation should be acknowledged as a matter of determination by legislators, by comprehensively taking into account the various factors such as the nature of a crime and the responsibility of an offender following the crime. Therefore, the statutory punishment for a certain crime is too harsh compared to the nature of a crime and the responsibility of an offender. Therefore, unless it is clearly against the principle of equality and the principle of proportionality under the Constitution, such as where balance is lost in the punishment system, or where it deviates from the degree necessary to achieve the original purpose and function of the punishment for a crime, the provision of Article 14(1) of the former Act on Testimony, Appraisal, Appraisal, etc. (amended by Act No.) provides that a witness or appraiser shall be punished for more than one year.

[2] Article 160 of the Criminal Procedure Act provides that "where a witness falls under Articles 148 and 149, the presiding judge shall explain that he/she may refuse to testify before being examined," and "the Act on Testimony, Appraisal, etc. before the National Assembly does not provide for the notification of the right to refuse to testify." However, Article 12 (2) of the Constitution provides that the right to be notified of the right to refuse to testify shall not be guaranteed as a citizen's fundamental right pursuant to Article 12 (2) of the Constitution that provides that the right to be notified of the right to refuse to testify shall not be forced to make a statement unfavorable to himself/herself, and there is no ground to acknowledge that Article 160 of the Criminal Procedure Act, which provides for the notification of the right to refuse to testify, applies

[3] The purpose of Article 5 (3) of the Act on Testimony, Appraisal, etc. before the National Assembly is to notify the witness of the summary to be examined. The purpose of the Act is to enable a person subject to witness to attend the National Assembly and to ascertain the facts in advance and to make a preparation for ascertain the facts or to find related materials so that he/she can make a testimony more faithful to the National Assembly, and not to prohibit an examination of matters not included in the summary to be examined. Article 5 (4) of the Act is not to prohibit an examination of matters that are not included in the summary to be examined. Article 5 (4) of the Act should be interpreted as a mandatory provision to be observed in light of the form of the provision, restrictions on a witness due to his/her attendance, the necessity for preparing answer materials, and the strict punishment when he/she violated the above provision. However, a witness who

[1] Articles 11 and 37(2) of the Constitution of the Republic of Korea; Article 152 of the Criminal Act; Article 14(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly (Amended by Act No. 10051, Mar. 12, 2010) / [2] Article 12(2) of the Constitution of the Republic of Korea; Article 14(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly (Amended by Act No. 10051, Mar. 12, 2010); Article 160 of the Criminal Procedure Act / [3] Article 5(1), (3), and (4) of the Act on Testimony, Appraisal, etc. at National Assembly; Article 14(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly (Amended by Act No. 1051, Mar. 12, 2010)

[1] Supreme Court Decision 2006Do7882 Decided February 8, 2007 en banc Decision 2001Hun-Ga16 Decided November 29, 2001 (HunGong63, 1115)/ [2] Supreme Court Decision 2009Do14928 Decided July 28, 201 (Gong201Ha, 1874)/ [3] Supreme Court Decision 2001Do531 Decided December 27, 2001 (Gong2002Sang, 436)

Defendant 1 and one other

Defendants

Law Firm Chungcheong, et al.

Seoul High Court Decision 2008No2790 decided November 5, 2009

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on Defendant 1’s grounds of appeal

A. As to the first ground for appeal

The issue of how to punish a certain crime is, that is, the choice of the type and scope of statutory penalty not only takes into account not only the nature of the crime but also various elements such as our history and culture, the times situation at the time of legislation, the general sense of values or legal sentiment of the people, and the criminal policy aspects for the prevention of crimes. As such, a broad range of legislative discretion or freedom of formation should be recognized as determined by legislators, by comprehensively taking into account not only the nature of the crime and the legal interests protected by the law. Therefore, as the statutory penalty for a certain crime is too harsh compared to the nature of the crime and the responsibility of the offender, it is remarkably harsh so that balance in the criminal system is lost, or it is obviously contrary to the principle of equality and the principle of proportionality under the Constitution, such as when it deviates from the original purpose and function of the crime (see, e.g., Constitutional Court en banc Decision 2001Hun-Ga16, Nov. 29, 2001).

In light of the above legal principles, Article 14(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly provides that “Any witness or appraiser who has taken an oath under this Act makes a false statement or appraisal, shall be punished by imprisonment with prison labor for not less than one year but not more than ten years,” but the mere fact that the above provision is set higher than the statutory penalty for perjury under the Criminal Act does not constitute a violation of the principle of liability by prescribing excessively excessive penalties, or a violation of the principle of equality by losing the balance of punishment systems.

B. Regarding ground of appeal No. 2

Article 160 of the Criminal Procedure Act provides that "where a witness falls under Articles 148 and 149, the presiding judge shall explain that he/she may refuse to testify before being examined." On the other hand, the Act on Testimony, Appraisal, etc. at the National Assembly does not provide for the notification of the right to refuse to testify. Thus, Article 12 (2) of the Constitution provides that the right to be notified of the right to refuse to testify shall not be guaranteed as a fundamental right of the people pursuant to Article 12 (2) of the Constitution, which provides that the right to be notified of the right to refuse to testify shall not be forced to make a statement unfavorable to himself/herself, and there is no ground for recognizing Article 160 of the Criminal Procedure Act, which provides for notification of

In the same purport, the court below's decision that Defendant 1 made an oath and made a testimony without being notified of the right to refuse to testify by the chairperson of the National Culture and Tourism Committee of the National Assembly is just to have determined that perjury is established against Defendant 1 who made a false testimony by deeming that the above oath and testimony itself are effective, and there is no error of law by misunderstanding the legal principles on the right to refuse to take an oath and to testify under the Act on Testimony, Appraisal

C. Regarding ground of appeal No. 3

Article 5(1) of the Act on Testimony, Appraisal, etc. at the National Assembly provides that "in cases where the plenary session or the committee makes a request for report or submission of documents, or a request for appearance of a witness, appraiser, or reference witness under this Act, a written request shall be issued to the relevant person or the head of the relevant agency." Paragraph (3) of the same Article provides that "in cases of a witness and reference witness, a written request under paragraph (1) shall be accompanied by the summary of the examination." Paragraph (4) of the same Article provides that "the written request under paragraph (1) shall be served seven days prior to the date of the request for appearance of a witness, etc.

The purport of Article 5(3) of the above Act stipulating that the witness shall be notified of the summary of the examination to the witness is to enable the person under consideration to attend the National Assembly in advance to identify the alternative contents to be present and to confirm the facts in advance or prepare related materials so that he/she can find out the materials, not to prohibit the examination of matters that are not included in the substance to be examined. Article 5(4) of the above Act is reasonable to interpret it as a mandatory provision that must be observed in consideration of the form of provision, restrictions on the witness due to his/her attendance, the necessity for preparing answer materials, and the strictness of punishment when he/she violates the above provision (see Supreme Court Decision 2001Do5531, Dec. 27, 2001). However, it is not possible to punish a witness who attends the National Assembly to make a false statement on the ground that he/she fails to comply with the above provision.

The judgment of the court below to the same purport is just, and the first ground for appeal on a different premise is without merit.

D. Regarding ground of appeal No. 4

Defendant 1 has the right to refuse to testify pursuant to Article 3 of the Act on Testimony, Appraisal, etc. before the National Assembly, so it cannot be deemed that there is no possibility that Defendant 1 may expect to make a true statement as much as the escape district from perjury has been established. Defendant 1 did not notify Defendant 1 that the right to refuse to testify does not violate the Act on Testimony, Appraisal, etc. before the National Assembly.

The court below is just in holding that it cannot be deemed that Defendant 1 who has lawfully taken an oath as a witness and testified could not expect to make a true statement, and there is no error of law by misunderstanding the legal principles on the possibility of expectation in perjury.

E. As to the grounds of appeal Nos. 5, 6, and 7

Examining the reasoning of the judgment below and the evidence duly admitted by the court below, the court below's determination that the charges of this case against Defendant 1 are recognized is just, and there is no violation of law of logic and experience beyond the bounds of the principle of free evaluation of evidence.

2. Judgment on Defendant 2’s grounds of appeal

A. As to the ground of appeal on defamation, violation of the Act on Testimony, Appraisal, etc. at the National Assembly, and violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation)

The fact that the public prosecutor actively proves the fact that the public prosecutor has made public is false, and the fact that the public prosecutor has no proof that it is true cannot establish defamation by making public false facts. However, in determining whether the above burden of proof has been fulfilled, a public prosecutor who is the active party should prove it without reasonable doubt if the absence of a specific act at a specified period and at a specified place is about the absence of a specific act. However, it is difficult for the public prosecutor to prove the absence of a specific fact in the context of social norms, while it is difficult for the public prosecutor to assert and prove the existence of a non-existence of a fact that is not specified in the specified period and space. Therefore, it should be considered in determining whether the public prosecutor fulfilled the burden of proof. Accordingly, a person who actively asserts that there is a suspicion against a person who has not been suspected of receiving a suspicion, can prove that the public prosecutor is false in the manner of impeachment of the materials presented. In this case, the mere presentation of materials to present is insufficient, and the public prosecutor is not sufficient enough to prove that it is false, at least 10.15.20.15.15.25.25.

After compiling the adopted evidence, the court below found the facts as stated in its holding as follows. As to the defamation of Defendant 2 among the facts charged in this case against the defendant 2, violation of the Act on Testimony, Appraisal, etc. at the National Assembly, and violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation), the audio recording file submitted by the defendant 2 cannot be deemed as having the physical nature to the extent that it can be proven by the prosecutor as to the falsity of the defendant 1. In addition to the non-indicted 2's legal statement, etc., the non-indicted 2 failed to submit a separate supporting evidence as to the above facts, the court below found the defendant 2 guilty of this part of the facts charged. The defendant 2 is bound to be responsible for publishing false facts and perjury because it falls under the case where he did not present any supporting evidence that can admit the existence of such a threat. In full view of all relevant circumstances such as the content, circumstance, time, status, and anticipated ripple effect of the above statement by the defendant 2.

In light of the evidence duly admitted by the lower court and the lower court’s determination that this part of the facts charged is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the burden of proof and degree of proof in defamation, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. As to the ground of appeal on defamation by radio

In light of the evidence duly admitted by the lower court and the lower court’s determination that this part of the facts charged is justifiable, and there were no errors in the misapprehension of the legal doctrine regarding defamation by radio, or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

C. As to the ground of appeal on the injury

In light of the evidence duly admitted by the lower court and the lower court’s determination that this part of the facts charged is justifiable, and there were no errors of misapprehending the legal doctrine on legitimate act or self-defense or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

3. Conclusion

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

Justices Min Il-young (Presiding Justice)