In cases where a co-defendant, who is an separated accomplice, has made a false statement on his/her criminal facts under the notification of the right to refuse to testify, whether perjury is established (affirmative)

Article 152(1) of the Criminal Act; Articles 148, 160, and 300 of the Criminal Procedure Act

Defendant 1 and two others

Defendant and the respondent for attachment order and the prosecutor (Defendant 2)

Attorney Cha Sung-won

Seoul High Court Decision 2011No3470, 2012No852, 2011No464 decided May 24, 2012

The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1 and 3’s appeals are all dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. The point of perjury

(1) Article 12(2) of the Constitution provides that "All citizens shall not be forced to make a statement unfavorable to themselves in criminal case," and Article 283-2(1) of the Criminal Procedure Act provides that "the defendant may not make a statement or refuse to make a statement for an individual question." Thus, the co-defendant, who is an accomplice, is not entitled to be a witness to the facts charged against another co-defendant in the status of the defendant in the litigation procedure, but if he/she goes beyond the defendant's status after separation of the litigation procedure, he/she may become a witness to the facts charged against other co-defendant (see Supreme Court Decision 2008Do3300, Jun. 26, 2008, etc.).

Meanwhile, Article 148 of the Criminal Procedure Act recognizes the right to refuse to testify in order to guarantee the defendant's privilege to refuse to commit the crime of self-incrimination, and Article 160 of the Criminal Procedure Act provides that the presiding judge shall notify the defendant of the right to refuse to testify before being examined in order to guarantee the right to refuse to testify. Thus, even if he/she recognizes the eligibility as a witness and examines his/her criminal facts, he/she cannot be said to infringe the defendant's right to refuse to make statements or the privilege to refuse to commit self-inc

Therefore, despite the notification of the right to refuse to testify as stipulated in Article 160 of the Criminal Procedure Act in the witness examination procedure, perjury is established if the above defendant makes a false statement without exercising the right to refuse to testify on his/her criminal facts.

(2) According to the records, if the Defendants were to be prosecuted for committing the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (special rape) in the second trial of the first instance court ( Incheon District Court 201Da475, 2011No. 99) of this case where the Defendants jointly committed the crime, the prosecutor applied for the examination of Defendant 2 as a witness of the facts charged and adopted the trial division. The above court notified other co-defendant of the decision to separate the defendant's case against the defendant 2 from the defendant's case against the other co-defendant during the third trial, and examined the defendant 2 as witness. Even if the presiding judge notified the defendant 2 of the right to refuse to testify before the examination, the defendant 2 took an oath as a witness, and made a false statement without exercising the right to refuse to testify against the prosecutor's question on his criminal facts, and there is no possibility that the defendant's testimony might be denied from the examination since the investigation agency to the witness examination, and there is no possibility that the remaining testimony of the defendant's testimony is not acceptable.

Nevertheless, the court below found Defendant 2 not guilty of perjury among the facts charged in this case against Defendant 2 on the premise that the co-defendant, who is an accomplice, could force the defendant to make a statement unfavorable to him, and thus, Defendant 2 does not have the eligibility to be a witness as to the facts charged against Defendant 1 and 3, and therefore, even if Defendant 2 testified and made a false statement as to his accomplice, he did not constitute perjury. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the eligibility to be a witness of co-defendant or as to the subject of perjury, which affected the conclusion of the judgment. The prosecutor's ground of appeal pointing this out is with merit.

B. As to the remainder of the acquittal

The prosecutor appealed from the judgment of the court below as to the remaining acquittal portion of Defendant 2, but there is no indication in the petition of appeal as to the grounds for appeal and no statement in the grounds for appeal as to the grounds for appeal are found.

2. As to the Defendants’ grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, it is justifiable to have determined that the lower court, on the grounds indicated in its reasoning, found Defendant 1’s violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.), Defendant 2 and Defendant 3’s violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Special Rape) and the charges of aiding and abetting (Rape, etc.) of Defendant 2’s violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape,

3. Scope of reversal

Of the part of the judgment below against Defendant 2, the charge of perjury which the court below acquitted should be reversed as seen above, and the court below acquitted Defendant 3 of the remaining charges except for aiding and abetting the violation of the Act on the Punishment, etc. of Sexual Crimes (Rape, etc.) by integration with Defendant 3, and aiding and abetting the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.). The court below acquitted Defendant 1 and 3 of the remaining charges on the grounds of the charges concerning the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes by Integration with Defendant 1 and 3.

As long as Defendant 2 lodged an appeal against the acquittal portion of Defendant 2 among the judgment below, and the prosecutor also appealed against Defendant 2, the part of the judgment of the court below as to Defendant 2 is completely cut off and remanded to the court of final appeal. Even if Defendant 2’s appeal against the guilty portion is not accepted, the prosecutor’s appeal against the perjury portion among the acquittal portion should be reversed as well as the acquittal portion as to Defendant 2’s guilty portion (see Supreme Court en banc Decision 2002Do807, Jun. 20, 2002, etc.). Furthermore, since the part of the judgment of the court below which found Defendant 1 and 3 guilty as to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (special rape) by integration with Defendant 1 and 3, it should be reversed together with the offense of aiding and abetting the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) and as long as the defendant’s case is reversed, the attachment order order order order should be reversed at the same time.

4. Conclusion

Therefore, the part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the lower court. Defendant 1 and 3’s appeal is dismissed in entirety. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)