The case holding that although his robbery was consistently denied the crime of injury by robbery, the act of testimony to deny his own crime after the defendant summonedd as a witness in the criminal case of an accomplice prosecuted for a separate conviction and taken an oath, does not constitute perjury.

The case holding that even though his robbery was consistently denied the crime of injury by robbery, the act of testimony denying his criminal facts after the defendant summoned as a witness in the criminal case of an accomplice prosecuted for a separate conviction, does not constitute perjury.

Article 152(1) of the Criminal Act

Defendant

Constitution of Gangwon

Attorney Park So-young

The defendant shall be innocent.

1. Summary of the facts charged

On April 7, 2004, the Defendant was sentenced to four years of imprisonment with prison labor for robbery in the Busan High Court and the judgment was finalized on April 16, 2004, and on which the judgment was made. On September 27, 2002, the Defendant made a false statement that “In making testimony after the Defendant appeared as a witness at the court of Busan District Court No. 301 on January 14, 2005, it goes against Non-Party 1’s escape from drinking in front of the yellow-gu, Busan High Court on September 27, 2002, by putting off Non-Party 1 and a shoulder who fright in front of the yellow-gu, Busan High Court, 301.”

2. Basic facts

A. On April 7, 2004, the defendant conspired with the non-indicted 1 in collusion with the non-indicted 1 on September 27, 2002, and found the victim non-indicted 1 (38 years of age) waiting for the taxi in front of studio 3-dong, Busan, and found the victim's 1 (38 years of age) and flob face with the victim's shoulder flobing, and found the victim's 1 to have his face unflobing at the 4th floor and unflobing it on the ground surface, and found the victim's 100,000 won away from 10,000 won away from 30,000 won away from 40,000 won away from 10,000 won to 370,000 won away from 20,000 won away from 10,000 won to 30,000 won.

B. Meanwhile, the investigative agency decided as Nonindicted 2 the Defendant and Nonindicted 2 who conspiredd with the crime of robbery injury by robbery, and prosecuted as the crime of robbery, and the Nonindicted 2, who was arrested late, denied the fact of the crime in the investigative agency and court, the prosecutor applied as a witness, and the court adopted it. The Defendant, on January 14, 2005, at the court of Busan District Court No. 301 of Busan District Court around January 16:0, 2005, at the time of final and conclusive judgment of conviction against himself, was under oath and testimony after attending as a witness of the crime of robbery injury by robbery against Nonindicted 2, who was prosecuted as the Defendant and accomplice, and asked the prosecutor’s question “I do not answer this fact.”

C. Ultimately, on April 8, 2005, Nonindicted Party 2 was acquitted on the grounds that there was no proof of the facts charged at the Busan District Court. The prosecutor appealed, but received a judgment of dismissal from the Busan High Court on August 17, 2005.

D. When the prosecutor rendered a judgment of innocence against Nonindicted 2 in the first instance trial, he indicted the Defendant for perjury.

3. Determination

Perjury is established by making a false statement by a witness who has taken an oath, and its main legislative purpose is to properly exercise jurisdiction and disciplinary power. Thus, even after issuing perjury, when confession or voluntarily surrenders himself/herself before a judgment or disciplinary measure becomes final and conclusive, punishment shall be mitigated or exempted (Article 153 of the Criminal Act). In cases where it is difficult to expect a true statement by a witness, the right to refuse to testify is recognized (Article 148 of the Criminal Procedure Act; Article 148 of the same Act; Article 148 of the same Act; Article 148 of the same Act provides that “any person may refuse to testify that may cause a criminal prosecution or public action or conviction by himself/herself).”

Therefore, in case where a co-defendant is tried together as a co-defendant, the co-defendant is recognized as having the right to refuse to testify, and it cannot be said that there is no possibility of legal expectation as much as the escape district from perjury has been established. As such, inasmuch as the co-defendant who has taken an oath as a witness gives up the right to refuse to testify and makes a false statement, he cannot be exempted from punishment of perjury (see Supreme Court Decision 86Do1724, Jul. 7, 1987).

However, in the case of this case, although the defendant is an accomplice, the defendant is already found guilty as a crime of robbery and thus the right to refuse to testify is not recognized unlike the case of co-defendant (it does not constitute "the case where there is a concern that the fact that he will be convicted of the crime of injury by robbery" as stipulated in Article 148 of the Criminal Procedure Act). As long as the defendant was adopted as a witness of the case prosecuted as an accomplice and summoned as a witness of the non-indicted 2, the defendant cannot refuse to testify unless he was summoned. In this case, the defendant, who did not have a means of escape from perjury, has consistently made a statement during the same period, and is found guilty as a final and conclusive judgment of conviction (in this case, it is not related to whether the defendant conspired with the non-indicted 2, but about whether the defendant has a fact that the defendant faces a shoulder with the non-indicted 1). Accordingly, the defendant's testimony to deny his criminal act does not constitute a case where the crime of this case is not established.

4. Conclusion

Therefore, the defendant is acquitted in accordance with the former part of Article 325 of the Criminal Procedure Act.

Judge Jin Jae-hun