[1] Whether an accusation under Article 15(1) of the Act on Testimony, Appraisal, etc. before the National Assembly constitutes a requirement for indictment of perjury under the main sentence of Article 14(1) of the same Act (affirmative)

[2] Whether an accusation under the proviso of Article 15(1) of the Act on Testimony, Appraisal, etc. before the National Assembly should be filed during the existence of the Special Committee (affirmative)

[3] The case affirming the judgment below dismissing a public prosecution on the same ground that the defendant was not a lawful accusation under Article 15 (1) of the Act since the special committee's term expires, and the indictment was not a lawful accusation under the same Act, and the indictment was not a lawful accusation under the same purport on the ground that it was filed without a lawful accusation, and thus, it is unlawful, in case where the defendant appeared as a witness and made a false statement after being sworn under the Act on Testimony, Appraisal, etc. at the National Assembly as a witness, and at least 1/3 of all incumbent members jointly made a joint signature after the special committee's term expires, and the defendant was prosecuted for perjury under the main sentence of Article 14 (1) of the same Act

[1] [Majority Opinion] Article 1 of the Act on Testimony, Appraisal, etc. at the National Assembly (hereinafter “National Assembly Testimony Act”) provides for the purpose of stipulating the procedure for reporting and submission of documents, testimony, appraisal, etc. in connection with the deliberation on an agenda, inspection, or investigation of the state administration by the National Assembly. The main text of Article 14(1) of the Act on Testimony, Appraisal, etc. at the National Assembly provides that a witness who has taken an oath under the same Act makes a false statement shall be punished by imprisonment for not less than one year nor more than ten years, and the main text of Article 15(1) provides that a witness shall be accused when the plenary session or the committee recognizes that a witness has committed an offense under the main sentence of Article 14(1). Article 15(2) provides that a confession prior to the commission of an offense may not be accused.

In light of the purpose of the National Assembly Testimony Act and the contents of the relevant provisions regarding perjury, it is reasonable to view that the National Assembly Testimony Act provides for the internal procedures of the National Assembly regarding the inspection or investigation of the state administration and entrusts the autonomous authority of the National Assembly as to whether to file an accusation against perjury, and recommends confession by allowing the National Assembly not to file an accusation when a confession of perjury is made. As such, perjury as prescribed in the main sentence of Article 14(1) of the National Assembly Testimony Act ought to be deemed an element for instituting an accusation under Article 15 of the same Act

[Dissenting Opinion by Justice Kim Shin] Since the National Assembly Testimony Act does not explicitly stipulate that an accusation is a requirement for prosecution, an accusation under Article 15(1) of the National Assembly Testimony Act is merely a proviso to an investigation, and it is difficult to view it as a requirement for prosecution.

Article 15 of the National Assembly Testimony Act provides for the subject of accusation, the offense subject to accusation, the exception to accusation due to confession, the title holder of accusation, and the public prosecutor’s disposition in a case where an accusation is made against a witness for perjury. However, it does not stipulate that a public prosecution may not be instituted unless an accusation is made, or a public prosecution may be instituted only when an accusation is made. As can be seen, the language and form of the National Assembly Testimony Act differs significantly from those of other special provisions that provide for an accusation as an element for prosecution, and thus, the nature and effect of an accusation under Article 15(1) of the National Assembly Testimony Act cannot be interpreted as the same as the requirement for indictment

Article 15 of the National Assembly Testimony Act is reasonable to regard the Criminal Procedure Act as a special provision applicable to cases where the National Assembly files an accusation against perjury, etc.

[2] [Majority Opinion] The main text of Article 15(1) of the Act on Testimony, Appraisal, etc. at the National Assembly (hereinafter “National Assembly Testimony Act”) provides that “If the plenary session or the committee deems that a witness, appraiser, etc. has committed an offense as prescribed in Article 12, 13, or the main sentence of Article 14(1), an accusation shall be filed.” The accusation under the main sentence of Article 15(1) is under the name of the chairman of the plenary session or the committee that investigated a witness (Article 15(3)). Therefore, the committee must make a resolution on accusation, and thus, the accusation under the main sentence of Article 15(1) is premised on the existence of the committee.

Meanwhile, the proviso of Article 15(1) of the National Assembly Testimony Act provides that “However, in the case of a hearing, an accusation may be filed in the name of a member under the joint signature of at least 1/3 of the incumbent members.”

For the following reasons, it is reasonable to interpret that an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be made during the existence of the commission.

① Interpretation of a registered member under the proviso to Article 15(1) of the National Assembly Testimony Act means a registered member under the existence of the committee, accords with the ordinary usage of the language and text. The prior meaning of the registered member refers to the entry of the name on the list. The National Assembly Act uses the term “registered member” under several provisions. The term “National Assembly Act” means a member who is currently recorded in the committee on the premise that all incumbent members remain in the committee, and it is difficult to deem that the committee ceases to exist upon the lapse of the committee. Therefore, insofar as the proviso to Article 15(1) of the National Assembly Testimony Act does not use any language to regard that “the former member” includes a special term “the former member” and only provides “the latter member” as “the latter part of the National Assembly Testimony Act, it is reasonable to interpret it to the same meaning as that of the registered member under the several provisions of the

② If the Special Committee that held a hearing fails to continue to exist due to the expiration of the term of its activities, construing that the witness who testified at the hearing cannot be accused of perjury thereafter accords with the purport of setting the period of its activities. In light of the language and purport of the proviso of Article 15(1) of the National Assembly Testimony Act, legislative intent and purpose, purport of setting the period of its activities, etc., if the Special Committee is no longer deemed to exist, it is reasonable to interpret that the accusation under the proviso of Article 15(1) of the National Assembly Testimony Act cannot be made if it becomes impossible to file an accusation under the main sentence of Article 15(1) of the same Act

③ Interpretation that a person who was a incumbent member at the time of the existence of a special committee may file an accusation under a joint signature even after the special committee remains in existence violates the principle of prohibition of analogical interpretation. In light of the language and legislative purport of the proviso of Article 15(1) of the National Assembly Testimony Act, and the relationship with other provisions, it is reasonable to interpret that a incumbent member under the proviso of Article 15(1) of the National Assembly Testimony Act refers to a member who has been enrolled in the committee where the special committee remains in existence, and that it does not mean a former incumbent member where the special committee remains in existence. In other words, construing that a former incumbent member at the time of the existence of the special committee may file an accusation under a joint signature even if the special committee disappeareds, the scope of the former incumbent member’s subject and time of accusation, which is the requirement for prosecution, is to be expanded disadvantageous to the actor. This goes

[Dissenting Opinion by Justice Kim So-young, Justice Park Sang-ok, and Justice Kim Jae-hyung] In a case where an accusation is filed by the Committee pursuant to the main sentence of Article 15(1) of the National Assembly Testimony Act, the Committee must continue to exist at the time of accusation, since such accusation is based on a resolution of the Committee. However, in a case where an accusation is filed in the name of a member pursuant to the proviso to the same paragraph, the Committee does not require a resolution of the Committee.

A registered member under the proviso of Article 15(1) of the National Assembly Testimony Act shall be deemed to refer to a person who was an incumbent member at the time when the Special Committee remains in existence, even though he/she is a member under the jurisdiction of the Committee. Such interpretation ought to be permissible as a teleological interpretation taking into account the legislative intent and purpose of the National Assembly Testimony Act, i.e., the statutory penalty for perjury and the amendment of the Act easing the requirements for accusation.

If interpreting that an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be made during the existence of the commission, it would result in the creation of a period for accusation without doubt, and would not punish a considerable number of perjury crimes that cannot be revealed during the special committee’s activity period ordinarily set for a short term. Such interpretation goes against the legislative purpose of punishing perjury under the Criminal Act more severe than perjury under the Criminal Act and protecting the propriety of the function of the National Assembly.

According to the Majority Opinion, a witness who made an accusation may not be accused of perjury after the special committee that made an investigation into the State affairs cannot be accused of perjury. Therefore, a witness who made an accusation may be punished if he/she made a confession before the special committee’s activity period ends, while he/she would not be subject to accusation or prosecution unless he/she made a confession by that time. As such, it would be more favorable to not making a confession. This result goes against the intent of recommending a confession prior to the completion of the deliberation on agenda items, the inspection or investigation of the State administration by Articles 14 and 15 of the National Assembly Testimony Act.

If the term of the committee’s accusation period is interpreted as the period of accusation, there is a big difference between the period of accusation and the witness testimony made at a special committee established by the standing committee which is a permanent organization. In addition, the period of accusation against a witness who has given a perjury may vary depending on a flexible circumstance, such as whether the special committee’s activity period is short-term or short-term, whether the period of testimony is early or at the beginning of the activity period, and whether the period of processing the investigation result at the plenary session is at any time or not, and thus, whether to punish the witness accordingly may be determined. Ultimately, according to the Majority Opinion, the prosecution and punishment may vary among the witnesses who

In conclusion, it should be interpreted that an accusation under the proviso of Article 15 (1) of the National Assembly Testimony Act can be jointly signed by persons who were incumbent members of the committee even after the committee for investigation of a witness is extinguished.

[3] As to the facts charged that the Defendant appeared as a witness and made a false statement after taking an oath under the Act on Testimony, Appraisal, etc. before the National Assembly (hereinafter “Special Committee”), which was held in the National Assembly on December 14, 2016 at the National Assembly (hereinafter “Special Committee”) and made a false statement, the case affirming the lower court’s judgment that rejected an accusation against the Defendant for perjury under the main sentence of Article 14(1) of the National Assembly Testimony Act, based on the joint signature of at least 1/3 of all incumbent members after the special committee’s term expires, on the ground that the period of investigation by the Special Committee was from November 17, 2016 to January 15, 2017, which was adopted and resolved by the special committee’s investigation report on January 20, 2017 at the plenary session of the National Assembly, and that an accusation under Article 14(1) of the National Assembly Testimony Act was not made on the ground that he/she had made a lawful accusation, but on the ground that he/she still made a lawful accusation.

[1] Articles 1, 14(1), and 15 of the Act on Testimony, Appraisal, etc. at the National Assembly; Article 21 of the Punishment of Tax Evaders; Article 284(1) of the Customs Act; Article 71(1) of the Monopoly Regulation and Fair Trade Act; Article 32(1) of the Fair Transactions in Subcontracting Act; Articles 234 and 257 of the Criminal Procedure Act / [2] Articles 12(1) and 51 of the Constitution; Articles 1(1) and 152(1) of the Criminal Act; Article 15(1) (see Article 7(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly (Amended by Act No. 6268, Feb. 16, 200; Article 15(1) and (2) of the former Act; Article 8(1) of the same Act; Article 5(2) of the former Act on Testimony, Appraisal, etc. at the National Assembly (see Articles 15(1) and (2) and (3) of the current Act);

[1] Supreme Court en banc Decision 65Do826 delivered on December 10, 1965

Defendant

Special Prosecutor

Law Firm, Attorneys Seo-soo et al., Counsel for defendant-appellant

Seoul High Court Decision 2017No1617 decided August 31, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. We examine the summary, case circumstances, and issues of the facts charged.

A. On December 14, 2016, the summary of the facts charged in this case was that the Defendant appeared as a witness under the Act on Testimony, Appraisal, etc. at the National Assembly (hereinafter “the National Assembly Testimony Act”) and testified and made a false statement as follows. In other words, upon Nonindicted 1’s request and around May 2015, the Defendant contacted Nonindicted 2 at around that time, with Nonindicted 2 as a product with a thickness of the President used in the appearance of △△△△△△△△△△△ Hospital, and introduced Nonindicted 4’s contact with him, the representative of Nonindicted 3 corporation, “I will be able to contact him,” and “I will not introduce Nonindicted 5’s telephone and testimony,” and “I will not inform Nonindicted 2 of his testimony.”

B. The investigation period of the instant Special Committee is from November 17, 2016 to January 15, 2017. At the plenary session of the National Assembly, the report on the investigation of the instant Special Committee was adopted and decided on January 20, 2017. On February 28, 2017, 13 of the 18 members of the Special Committee, who were members of the said Special Committee, filed an accusation against the Defendant (hereinafter “instant accusation”).

C. Although the first instance court found the Defendant guilty of the instant facts charged, the lower court ex officio reversed the judgment of the first instance court and dismissed the instant prosecution.

The instant facts charged constitute an offense falling under Article 14(1) of the National Assembly Testimony Act, which can be prosecuted only when an accusation under Article 15(1) of the same Act is filed. Not only the main text of Article 15(1) of the National Assembly Testimony Act but also the instant accusation under the proviso ought to be deemed possible during the existence of the relevant commission. As such, the instant accusation was made after the relevant special committee ceases to exist, it does not constitute a lawful accusation. Accordingly, the instant indictment constitutes a case where a prosecution procedure becomes null and void due to a violation of the statutory provisions.

D. The key issue of the instant case is (i) whether an accusation under Article 15(1) of the National Assembly Testimony Act constitutes an element for indictment of perjury under the main sentence of Article 14(1) of the same Act; and (ii) whether an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be made during the existence of the Special Committee.

2. As to whether the accusation under Article 15(1) of the National Assembly Testimony Act is an element for prosecution

Article 1 of the National Assembly Testimony Act provides that the purpose of Article 1 is to provide for the procedures for a report and submission of documents, testimony, appraisal, etc. conducted in connection with the deliberation on an agenda, inspection, or investigation of the state administration by the National Assembly. The main sentence of Article 14(1) of the same Act provides that any witness who has taken an oath under the same Act makes a false statement shall be punished by imprisonment with prison labor for not less than one year nor more than ten years, and the main sentence of Article 15(1) provides that the plenary session or the committee shall lodge an accusation when it recognizes that the witness has committed an offense under the main sentence of Article 14(1). Article 15(2) provides that any accusation may not be made when he/she is led to the commission of

In light of the purpose of the National Assembly Testimony Act and the contents of the relevant provisions regarding perjury, it is reasonable to view that the National Assembly Testimony Act provides for the internal procedures of the National Assembly regarding the inspection or investigation of the state administration, and entrusts the authority of the National Assembly to make an accusation as to perjury, and, if a confession is made, recommends confession by allowing the National Assembly not to file an accusation. As such, it is reasonable to view that perjury under the main sentence of Article 14(1) of the National Assembly Testimony Act is an element for instituting an accusation under Article 15 of the same Act (see Supreme Court en banc Decision 65Do826, Dec. 10, 1965).

3. We examine whether an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be made during the existence of the Special Committee.

A. Article 15(1) main text of the National Assembly Testimony Act provides, “If the plenary session or the committee deems that a witness, appraiser, etc. has committed an offense under Article 12, 13, or the main sentence of Article 14(1), an accusation shall be filed.” The accusation under the main sentence of Article 15(1) is under the name of the Speaker or Chairperson of the plenary session or the committee that has investigated a witness (Article 15(3)). Therefore, the committee’s resolution on accusation ought to be made, and thus, an accusation under the main sentence of Article 15(1) is premised on the existence of the committee.

Meanwhile, the proviso of Article 15(1) of the National Assembly Testimony Act provides that “However, in the case of a hearing, an accusation may be filed in the name of a member under the joint signature of at least 1/3 of the incumbent members.”

B. For the following reasons, it is reasonable to interpret that an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be made during the existence of the commission.

(1) The interpretation that a registered member under the proviso of Article 15(1) of the National Assembly Testimony Act means a registered member under the existence of the commission is consistent with the ordinary usage of the language and text.

The meaning of the incumbent committee’s prior entry means that the name is listed on the register. The National Assembly Act uses the term “registered members” under several provisions. At least 1/4 of the incumbent members (Article 52); at least 1/5 of the incumbent members as the quorum for holding a meeting of the committee; the attendance of a majority of the incumbent members as the quorum for holding a meeting; the demand (Article 54); the attendance of at least 1/3 of the incumbent members as the requirement for holding a meeting of the electric power committee (Article 57-2); the attendance of at least 1/4 of the incumbent members as the requirement for holding a meeting; the attendance of at least 1/4 of the incumbent members as the requirement for holding a meeting of the electric power committee; the affirmative votes of at least a majority of the incumbent members (Article 63-2); the request of at least 1/3 of the incumbent members (Article 64); the request for the attendance of at least 2/3 of the incumbent members as the requirement for holding a hearing; the affirmative vote of at least a majority of the incumbent members (Article 81/5).

As above, all incumbent members under the National Assembly Act refer to members who are currently recorded in the Committee on the premise that the Committee remains in existence, and it is difficult to deem that they present cases where the Committee no longer remains in existence due to the extinguishment of the Committee. If the scope of incumbent members is interpreted to include those who were incumbent members at the time when the previous Committee remains in existence, such interpretation would substantially be the same as allowing the Committee to resume the operation of the Committee on the expiration of the term. If it is difficult to determine at any time whether the completion period should be viewed again, and if a former incumbent member becomes disqualified for membership due to death, invalidation of election, or any other reason, it would result in unclear circumstances in various respects

similar to the relationship between the main text and proviso of Article 15(1) of the National Assembly Testimony Act, even under the National Assembly Act, which provides for the same requirement as the selective demand of the incumbent committee members for more than a certain number of the results of the committee’s deliberation, the relevant incumbent committee members refer to the current committee members who are enrolled in the committee while the committee is in existence.

Therefore, insofar as the proviso of Article 15(1) of the National Assembly Testimony Act does not use any phrase to include a person who was an incumbent member, and only provides that a person is an incumbent member, it is reasonable to interpret the same meaning as the incumbent member under the National Assembly Act, as seen earlier.

(2) If the Special Committee that held a hearing fails to continue to exist due to the expiration of the term of its activities, interpreting that the witness who testified at the hearing cannot be accused of perjury is consistent with the purport of setting the period of its activities.

The National Assembly may establish a special committee by resolution at the plenary session, and if constituting a special committee, the period of its activities shall be determined, and the period may be extended by resolution at the plenary session. The special committee shall continue to exist until the expiration of the period of its activities, and where the examination of systems and wording is requested to the Legislation and Judiciary Committee pursuant to Article 86 of the National Assembly Act or a written examination report is submitted pursuant to Article 66 of the National Assembly Act until the expiration of the period of its activities, the relevant agenda shall be deemed to continue to exist until the resolution at the plenary session is made (Article 4

In addition to hearing the statement of a witness by opening a hearing, filing a charge of perjury with the witness belongs to the activities of the special committee. Accordingly, the accusation against the witness should be made during the existence of the committee (including the case where it is deemed to exist).

The committee of the National Assembly, such as the Special Committee, is a collegiate institution of the National Assembly composed of a small number of members from among the members. In a case where the Special Committee ceases to exist, it shall be deemed that the relevant duties cannot be performed unless there is a separate provision that succeeds to the relevant authority or affairs. However, where the Special Committee ceases to exist due to the expiration of the period of its activities

The proviso of Article 15(1) of the National Assembly Testimony Act (amended by Act No. 6268, Feb. 16, 2000) was newly established. According to the current legislative data, given that there are cases where it is difficult to satisfy the quorum for filing an accusation by the commission pursuant to the main sentence of Article 15(1), the requirement for filing an accusation is mitigated by allowing the commission to file an accusation under the name of a member with a joint signature of at least 1/3 of the incumbent members of the commission. As such, the proviso of Article 15(1) of the National Assembly Testimony Act provides for the relaxation of the requirement for filing an accusation under the main sentence of Article 15(1) of the same Act, and it is difficult to deem that there is a provision that allows an accusation, or that it is a provision on the succession to the authority or affairs of the

In light of the language and text of the proviso of Article 15(1) of the National Assembly Testimony Act, legislative purport and purpose, the purport of setting the special committee’s activity period, etc., it is reasonable to interpret that an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act cannot be made if a special committee ceases to exist if an accusation under the main sentence of Article 15(1) becomes impossible.

(3) Even after the special committee does not continue to exist, construing that a person who was a incumbent member at the time of the existence of the former special committee may file an accusation under the joint signature violates the principle of prohibition of analogical interpretation.

In a case where the interpretation of a penal provision deviates from the possible meaning of the legal provision, the principle of prohibition of analogical interpretation is against the principle of no punishment without the law. The provision of a penal provision shall apply mutatis mutandis to the interpretation of a penal provision. If the scope of the elements of a penal provision is expanded by analogy, and the scope of punishment is unfavorable to an offender, it would result in the same consequence as that of analogical interpretation of the elements of a crime beyond the meaning of the possible text, and thus, it cannot be permitted against the principle of no analogical interpretation, which is the derived principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 96Do1167, Mar. 20, 199; Supreme Court Decision 2008Do4762, Sept. 30,

As seen earlier, in light of the language and legislative purport of the proviso of Article 15(1) of the National Assembly Testimony Act, and relationship with other statutory provisions, it is reasonable to interpret that an incumbent member of the National Assembly under the proviso of Article 15(1) of the National Assembly Testimony Act refers to a member who is recorded in the committee where the relevant special committee remains in existence, and does not mean a person who was an incumbent member of the committee where the relevant special committee remains in existence, even if the special committee ceased to exist, the interpretation that a former incumbent member of the committee at the time of the existence of the special committee can file an accusation under the joint signature would be to extend the scope of the former incumbent member’s subject and time of accusation to the disadvantage of the relevant

Even if it is necessary to punish a witness who has given perjury at the time of the termination of the special committee’s period of activity, and witness who has not been verified due to failure to make confession until the expiration of the period of activity, and witness who has made confession after the expiration of the period of activity of the special committee, it is a matter to be resolved through legislation. It is against the principle of no punishment without the law to resolve it by analogical interpretation of current law.

4. In the same purport, the lower court was justifiable to have determined that the instant accusation did not constitute a lawful accusation under Article 15(1) of the National Assembly Testimony Act, but the instant indictment was unlawful on the ground that it was filed without a lawful accusation, which is an element for indictment. In so doing, the lower court did not err by misapprehending the legal doctrine on the interpretation and application of Article 15 of the National

5. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Shin, on the part as to whether the accusation under Article 15(1) of the National Assembly Testimony Act constitutes an element for indictment of perjury under the main sentence of Article 14(1) of the same Act, the part pertaining to whether the accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be made during the existence of the Special Committee.

6. Dissenting Opinion by Justice Kim Shin as to whether an accusation under Article 15(1) of the National Assembly Testimony Act constitutes an element for prosecution of perjury under the main sentence of Article 14(1)

A. The Majority Opinion construed that an accusation under Article 15(1) of the National Assembly Testimony Act constitutes an element for indictment of perjury under the main sentence of Article 14(1) of the National Assembly Testimony Act. However, the Majority Opinion’s logic is difficult to agree on the following grounds.

B. The National Assembly Testimony Act does not stipulate that an accusation is an element for prosecution, and thus, an accusation under Article 15(1) of the National Assembly Testimony Act is merely a proviso to an investigation, and it is difficult to view it as an element for prosecution.

(1) “Accusation” means a person other than a complainant and a criminal who wishes to punish an offender by reporting an offense to an investigative agency. Any person may, if deemed an offense, file a criminal charge. A public official shall file a criminal charge (Article 234 of the Criminal Procedure Act). In the event that a criminal charge is deemed to exist in the course of performing his/her duties, the public official shall file a criminal charge (Article 234 of the Criminal Procedure Act). In the event of a criminal charge, the investigative agency

In principle, such accusation is the proviso of an investigation. Since any person may bring an accusation against a customs offender, the complainant includes a public corporation, judicial person, unincorporated association or organization without limit to natural persons. On the contrary, in the case of a specific crime under the Special Act which requires prosecution, an accusation is explicitly stated as a requirement for prosecution. For instance, Article 21 of the Punishment of Tax Evaders Act provides that “No public prosecutor may bring an accusation against an offense under this Act without accusation by the Commissioner of the National Tax Service, the director of a regional tax office, or the head of a tax office.” Article 284(1) of the Customs Act provides that “No public prosecutor may bring an accusation against a customs offender unless the Commissioner of the Korea Customs Service or the head of a customs office files an accusation.” Article 71(1) of the Monopoly Regulation and Fair Trade Act provides that “The offense under Articles 66(Penal Provisions) and 67(Penal Provisions) of the Fair Transactions in Subcontracting Act may bring an accusation only when the Fair Trade Commission files an accusation against a customs offender,” and Article 32(1) of the Fair Transactions in Subcontracting Act provides that a prosecution may be instituted.

(2) Article 14 of the National Assembly Testimony Act provides for the elements of perjury, statutory penalty, confessions which are the grounds for reduction or exemption of punishment, and Article 15 provides for accusation against perjury under Article 14. Article 15 of the same Act provides that “Where the plenary session or the committee deems that a witness, appraiser, etc. has committed an offense under Article 12, 13, or the main sentence of Article 14 (1), it shall be accused: Provided, That in the case of a hearing, an accusation may be made under the joint signature of at least 1/3 of the incumbent members.” Article 14 (2) provides that “An accusation may not be made if there is a confession under the proviso to Article 14 (1), unless there is a request for documents, etc. under the main sentence of paragraph (1) or if there is a request for accusation under the name of the Speaker or the chairperson of the National Assembly for examination of witnesses, appraisers, etc.” Article 15 (4) provides that “In the event of receipt of an accusation under paragraph (1), the National Assembly Testimony Act, the relevant witness testimony and testimony may not be made within two months.”

(3) Article 15 of the National Assembly Testimony Act is reasonable to regard the accusation provision of the Criminal Procedure Act as a special provision applicable to cases where the National Assembly files an accusation against perjury, etc.

Article 234 of the Criminal Procedure Act is a general provision applicable to an accusation, not a requirement for prosecution. According to Article 234(1) of the Criminal Procedure Act, an accusation may be made. According to Article 234(2) of the same Act, a public official who deems an offense to be committed in the course of performing his/her duties must file a criminal charge. This may be interpreted that any person may file a criminal charge against perjury in the National Assembly, and a public official who is involved in the investigation of a witness who made the perjury may file a criminal charge if he/she considers that he/she has committed an offense of perjury. Article 15(1) of the National Assembly Testimony Act provides, “The plenary session or the committee’s plenary session or the committee’s committee recognizes that a witness, appraiser, etc. has committed an offense of perjury, etc.” In light of the language and form thereof, if the National Assembly files a criminal charge due to perjury under Article 234(2) of the Criminal Procedure Act, it is reasonable to regard the subject of such accusation, crime subject to perjury, etc. as a joint signature of the National Assembly or committee’s committee’s.

In a case where an accusation is filed under Article 15(1) of the National Assembly Testimony Act, Article 15(4) of the National Assembly Testimony Act stipulating a report on the completion of an investigation and the result of a disposition by a public prosecutor is also deemed a special provision under Article 257 of the Criminal Procedure Act regarding the handling of a case when a public prosecutor files an accusation.

As above, the National Assembly Testimony Act specifically provides for the subject of an accusation, the subject of an offense subject to an accusation, the public prosecutor’s handling of a case, etc. applicable to a case where the National Assembly files an accusation with respect to the provisions of the Criminal Procedure Act, which are general provisions concerning an accusation, and does not provide for the nature and effect of an accusation. Therefore, a reasonable interpretation that the provisions of the Criminal Procedure Act

C. In conclusion, an accusation under Article 15(1) of the National Assembly Testimony Act is a proviso to an investigation and ought to be interpreted not to be an element for prosecution. Therefore, the indictment of this case is lawful even if there is no accusation under Article 15(1) of the National Assembly Testimony Act.

D. In contrast, the lower court dismissed the public prosecution on the ground that the instant public prosecution was instituted without a lawful accusation, which is an element for prosecution. In so determining, the lower court erred by misapprehending the legal doctrine on the nature and validity of an accusation under Article 15(1) of the National Assembly Testimony Act. Therefore, the lower judgment shall be reversed and the case shall be remanded to

For the foregoing reasons, we express our dissent.

7. Dissenting Opinion by Justice Kim So-young, Justice Park Sang-ok, and Justice Kim Jae-hyung as to whether an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be filed during the existence of the

A. The Majority Opinion argues that the incumbent members of the National Assembly under the proviso of Article 15(1) of the Act on Testimony and Appraisal refer to those incumbent members who continue to exist, and that an accusation under the above provision can only be made under the joint signature of those incumbent members while the commission remains in existence. However, the Majority Opinion’s logic is difficult to agree with the following reasons.

B. There is no law without any purpose. If it does not go against the language and text of the law, the law should be interpreted so as to realize the legislative purpose. citing minor expressions of phrases, the interpretation contrary to the legislative intent and legislative purpose should not be made.

In light of the prior meaning of the registered (refinite) and the usage of the terms of the registered members stipulated in various provisions of the National Assembly Act, the Majority Opinion construed that the registered members as stipulated in the proviso of Article 15(1) of the National Assembly Testimony Act refer only to the registered members under the presence of the commission. However, the prior meaning of the registered members is merely the name of the list. Therefore, there is no inevitable reason to deem that the list should be limited to the list of the committees under the presence of the commission at the time of accusation.

Even if the language and text of the incumbent members under the various provisions of the National Assembly Act, which the Majority Opinion cited, refer to the membership in the National Assembly Act, refers to only the composition and activities of the committee surviving the National Assembly Act, and is merely a phenomenon arising from the failure to provide for matters concerning external activities in the name of an individual after the committee’s extinction and that of an individual member. In a case where an accusation is filed by the committee pursuant to the main sentence of Article 15(1) of the National Assembly Testimony Act, the interpretation of the language and text under the above several provisions of the National Assembly Act may be based on the interpretation of the National Assembly Act. However, since the proviso of Article 15(1) of the National Assembly Testimony Act is a case where an accusation is filed in the name of a member other than the committee, various provisions of the National Assembly Act and the regulatory premise are completely different. Therefore, the interpretation of the terms used under the National Assembly Act on the premise of a committee surviving the committee.

In a case where an accusation is filed by a committee under the main sentence of Article 15(1) of the National Assembly Testimony Act, the committee shall file an accusation in the name of the chairperson according to the resolution of the committee. However, if an accusation is filed in the name of a member pursuant to the proviso to Article 15(1) of the same Act, the committee’s resolution is not required, and thus, it is unnecessary to continue to exist. The language and text does not necessarily require any different provision depending on whether the accusation is extinguished or not. While the committee survives, the same accusation may be filed by the relevant committee

A registered member under the proviso of Article 15(1) of the National Assembly Testimony Act shall be deemed to refer to a person who was a registered member at the time when the special committee remains in existence, even though he/she is a member under the jurisdiction of the committee. Such interpretation ought to be permitted as a teleological interpretation taking into account the legislative intent and purpose of the National Assembly Testimony Act, which provides a statutory punishment for perjury in the National Assembly and relieves the requirements for accusation, as seen below. It is unreasonable to deem this as a violation of the principle of prohibition of analogical interpretation. Rather, according to the Majority Opinion, it would result in a variety of unreasonable consequences that deviate from the legislative purpose.

C. (1) Article 15(1) of the National Assembly Testimony Act provides that a witness is deemed to have committed perjury under Article 14(1), the plenary session or the committee shall file a criminal charge; and in the case of a hearing, the member may file a criminal charge under the name of the committee member pursuant to the joint signature of at least 1/3 of the incumbent members. Article 2, 3, and 4 provides for the grounds for not filing a criminal charge, the title holder, and the public prosecutor’s disposition and report based on the accusation. The National Assembly Testimony Act only provides for accusation and does not restrict the period of accusation. In light of the language and text thereof, Article 15(1) ought to be deemed as the provision specifying the subject of the accusation, and the term of accusation cannot be deemed as the provision on the period of accusation. Likewise, other Acts that impose restrictions on the period of accusation, such as Article 284 of the Customs Act, Article 21 of the Punishment of Tax Evaders Act, Article 71 of the Monopoly Regulation and Fair Trade Act, and Article 32 of the Fair Transactions in Subcontracting Act, etc.

Article 230(1) of the Criminal Procedure Act limits the period for filing a complaint against an offense subject to victim's complaint to six months from the date on which the offender becomes aware of the period for filing a complaint. The reason is to prevent the closure that takes place when the victim, who is a private person, leave the exercise of the right to file a complaint to his/her will and takes place for a long time. On the other hand, the reason why the period for filing a complaint does not restrict the period for filing a complaint is because the State agency is designated as a person having the right to file a complaint, and it is difficult

Nevertheless, the Majority Opinion’s interpretation that an accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be made during the existence of the commission would result in the creation of a period for accusation without doubt. The Majority Opinion, in the absence of explicit provision in the National Assembly Testimony Act, newly recognizes an accusation period that is not recognized by any other Act through interpretation as a requirement for prosecution, instead of recognizing an accusation through interpretation.

(2) Article 15(1) of the former Act on Testimony and Appraisal of National Assembly (amended by Act No. 6268, Feb. 16, 200; hereinafter “former Act on Testimony and Appraisal of National Assembly”) stipulates only the subject of accusation as “National Assembly.” After the amendment of the aforementioned Act, the subject of accusation under Article 15(1) changed to “the plenary session or the committee” and the proviso of Article 15(1) was also newly established. As recognized by the Majority Opinion, the reason for the amendment of the said Act also lies in relaxing the requirement for accusation against the witness. The change of the subject of accusation from “National Assembly” to “the plenary session or the committee” by the said amendment made it clear that the plenary session or the committee having a direct relation with the relevant witness could file a complaint with the plenary session or the committee having a direct relation with the said witness, not any restriction on the requirements for accusation in the National Assembly. Therefore, the proviso of Article 15(1) additionally included in the same as the subject of accusation should be interpreted to the effect that the relevant person’s accusation should have been extinguished under joint signature.

D. (1) Article 14(1) of the National Assembly Testimony Act provides that a witness who testified after being requested by the National Assembly to attend in connection with the deliberation of an agenda, inspection, or investigation of the state administration shall be punished. This is to protect the propriety of the overall function of the National Assembly with respect to legislative, financial, and national control. Article 14 of the National Assembly Testimony Testimony Act provides for a statutory penalty for a period of not less than one year but not more than ten years, which is a statutory penalty for perjury under the Criminal Act, or a fine not exceeding ten million won.

Perjury is not established by making the content of testimony not consistent with objective facts, but is established when it goes against the witness’s memory. Even if a witness perjury does not make a confession, there are many cases where suspicion is not revealed within a short time after his/her testimony. Rather, only after comparing the testimony of other witnesses related to the content of testimony with other objective materials and making an additional investigation into the witness, it is common that the suspicion is revealed and it takes a lot of time to the process.

If it is interpreted that an accusation can be made only during the existence of the committee under the proviso of Article 15(1) of the National Assembly Testimony Act, a considerable number of perjury crimes cannot be punished, which are difficult to reveal during the special committee’s activity period ordinarily set short-term. This interpretation goes against the legislative purpose of punishing a perjury heavier than that prescribed in the Criminal Act, thereby protecting the adequacy of the function of the National Assembly.

(2) The proviso of Article 14(1) and Article 14(2) of the National Assembly Testimony Act provide that if a witness suspected of committing an offense, his/her punishment may be mitigated or exempted, and the confession shall be made before the National Assembly completes the deliberation of the case, the inspection, or the investigation of the state administration. Article 15(2) of the same Act provides that if there is such confession, an accusation may not be made. The reason why the restriction is made before the completion of the deliberation of the case, the inspection, or the investigation of the state administration, which is an exception to the reduction or exemption of punishment, may prevent a witness from distorted the outcome of the confession due to a perjury that should be revealed prior to the expiration of the deliberation of the case, the inspection, or the investigation of the state administration, which is

According to the Majority Opinion, a witness who made an accusation may not be accused of perjury after the special committee that made an investigation into the State affairs cannot be accused of perjury. Therefore, a witness who made an accusation may be punished if he/she made a confession before the special committee’s activity period ends, while he/she would not be subject to accusation or prosecution unless he/she made a confession by that time. As such, it would be more favorable to not making a confession. This result goes against the intent of recommending a confession prior to the completion of the deliberation on agenda items, the inspection or investigation of the State administration by Articles 14 and 15 of the National Assembly Testimony Act.

(3) If the term of the committee’s accusation is interpreted as the period of accusation, there is a big difference between the witness who testified at the standing committee, which is the permanent organization, and the witness testified at the special committee where the operating period is set, and the period of the special committee’s accusation is long-term or short-term, or the period of the testimony is terminated at the beginning of the operating period, and the period of the inspection of the plenary session’s investigation results in a change in the period of accusation against the witness who perjury and whether to punish the witness accordingly. Ultimately, according to the Majority Opinion, the prosecution and punishment may vary among the witnesses who have given the perjury depending on the aforementioned contingency circumstances, thereby going against equity.

E. As seen above, the former Act on Testimony and Appraisal of National Assembly prescribed the subject of accusation as the National Assembly, but only classified it into a plenary session or a committee by law amendment. The committee is an internal organ of the National Assembly composed of a small number of members from among National Assembly members, and at the same time, the committee is an organ of the National Assembly that examines the agenda referred to it before deliberation at the plenary session or prepares bills under its jurisdiction. It is difficult for all members of the plenary session to specifically deliberate on the overall functions of a wide range of National Assembly because the function of modern countries is expanded and complicated and complicated, and it is difficult for the plenary session to specifically deliberate on the overall functions of the National Assembly. In other words, the committee to organize a small number of National Assembly members and have them deliberate on and decide whether to present it at the plenary session. In other words, the function

Article 51 of the Constitution provides for the principle of the continuation of session of the National Assembly and provides that the same shall not apply to cases where the term of a National Assembly member expires. This means that the principle of the continuation of session is maintained only within the same period of the National Assembly, in light of the nature of representative democracy by election, and the National Assembly members have the ability to deal with bills separate from the previous National Assembly. According to Article 51 of the Constitution, a new National Assembly member may file a criminal charge until the expiration of the term of a National Assembly member, even if the plenary session that investigates a witness ends. As seen above, the National Assembly may serve as an organ of the National Assembly. Even if a special committee cannot file a criminal charge for a resolution due to the expiration of the term of office, if the term of office of a National Assembly member who was a incumbent member of the National Assembly expires, it is natural to view that the former incumbent member may file a criminal charge for a perjury under the joint signature of the National Assembly member of the National Assembly. Furthermore, the proviso to Article 15(1) of the National Assembly Testimony Testimony Act directly grants the authority to file a criminal charge to the Committee.

Therefore, it is reasonable to interpret that a person who was a incumbent member at the time of the existence of the former Special Committee may file an accusation pursuant to the proviso of Article 15(1) of the National Assembly Testimony Act even after the special committee’s expiration of the term of office. Such interpretation is not an unlimited expansion of the timing for filing an accusation as if the Majority Opinion concerns.

F. In conclusion, the accusation under the proviso of Article 15(1) of the National Assembly Testimony Act ought to be interpreted that the former incumbent members of the commission may jointly sign the accusation even after the commission’s invalidation of the witness investigation. Therefore, the instant accusation is lawful and the instant indictment is lawful.

G. Nevertheless, the lower court rejected the prosecution on the grounds that the instant accusation is unlawful and that the instant indictment was unlawful as it was filed without a lawful accusation, which is the requirement for indictment. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of Article 15 of the National Assembly Testimony Act. Therefore, the lower judgment is reversed and the case should be remanded to the lower court.

This is the reason for opposing the Majority Opinion.

Chief Justice Kim Jong-soo (Presiding Justice)