[1] The purport of Article 5(1) and (4) of the former Act on Testimony, Appraisal, etc. at the National Assembly provides that a summary of examination to a summons for a witness and a witness shall be attached, and whether the above provision prohibits an examination of matters not included in the summary of examination (negative)

[2] Whether a legitimate request for appearance of a witness should be premised in order to establish a crime of absence of a witness under Article 12(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly (affirmative)

[1] Article 5(1) and (4) of the former Act on Testimony, Appraisal, etc. at the National Assembly (Amended by Act No. 14757, Mar. 21, 2017) / [2] Articles 5(1) and (5), and 12(1) of the former Act on Testimony, Appraisal, etc. at the National Assembly (Amended by Act No. 14757, Mar. 21, 2017); Article 10(1) of the former Act on the Inspection and Investigation of State Administration (Amended by Act No. 15619, Apr. 17, 2018)

[1] Supreme Court Decision 2009Do13197 Decided October 25, 2012 (Gong2012Ha, 1977)

Defendant 1 and six others

Defendant 1, Defendant 2, Defendant 3, and Prosecutor (Defendant 1, Defendant 4, Defendant 5, Defendant 6, and Defendant 7)

Law Firm LLC et al. and five others

Seoul Central District Court Decision 2018No151 Decided April 20, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

Article 15(4) of the former Act on Testimony, Appraisal, etc. at the National Assembly (amended by Act No. 14757, Mar. 21, 2017; hereinafter “former Act on Testimony, Appraisal, etc.”) provides that if a complaint is filed by the plenary session or the committee, the prosecutor shall conclude the investigation within two months from the date on which the written accusation is received. However, this is not a provision on the statute of limitations, but a decoration provision for urging the prosecutor to investigate promptly, and thus the indictment of this case was unlawful. Examining the reasoning of the lower judgment in light of relevant legal principles, the lower court did not err by misapprehending the legal doctrine on Article 15(4) of the former Act on Testimony, Appraisal, etc. at the lower court.

2. As to Defendant 2’s ground of appeal

A. On January 10, 2017, on the grounds indicated in its reasoning, the lower court upheld the first instance judgment, which determined that there was a legitimate accusation by receiving the instant accusation from the Supreme Prosecutors’ Office on January 10, 2017, under the term of “the Special Committee on the Investigation of State Affairs by Civilians, such as the largest room of the Park Jong-gu Government” (hereinafter “the instant Special Committee”). Examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the legality of prosecution.

B. Article 5(1) of the former Act on Testimony and Appraisal of National Assembly provides, “When the plenary session or the committee makes a request for a report or submission of documents, etc., or a request for the attendance 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,” and Article 5(4) of the same Act provides, “The written request for examination of a witness and reference witness shall be accompanied by an outline to be examined in the case of a witness and reference witness.” The purport of the above provision is to ensure that a person subject to examination is only designed to make him/her make him/her available for a more faithful testimony in the National Assembly by grasping the alternative contents to be present and to confirm facts or by preparing to find related materials, and not to prohibit the examination of matters not included in the summary of examination (see Supreme Court Decision 2009Do13197, Oct. 25,

For the reasons indicated in its reasoning, the lower court determined that Defendant 2’s demand for appearance was not unlawful even if the summary of the examination was stated in Defendant 2’s summons as “related to the strike of documents outside the public prosecution, etc.” and even if it was insufficient to grasp the alternative contents to be testified by Defendant 2 solely based on such description, the request for appearance was insufficient. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower

C. The lower court determined that Defendant 2 did not constitute a case where there was an inevitable reason on the date of the hearing attendance, or there was a justifiable reason for his absence. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

3. As to Defendant 3’s ground of appeal

The lower court determined that Defendant 3 did not constitute a case where there was a justifiable reason for not having been absent due to Defendant 3’s failure to appear in the region for livelihood. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

4. As to the Prosecutor’s Grounds of Appeal

A. Article 12(1) of the former Act on Testimony and Appraisal of National Assembly provides that “A witness who fails to appear without any justifiable reason shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding ten million won.” Unlike the absence of a witness in a trial, a criminal punishment is imposed on the absence of a witness in the National Assembly. In order to establish a crime of non-appearance of a witness under the above provision, a legitimate request for attendance of a witness should be premised.

B. However, Article 10(1) of the former Act on the Inspection and Investigation of State Administration (amended by Act No. 15619, Apr. 17, 2018; hereinafter “former Act on the Inspection of State Administration”) provides that “The Committee may, by its resolution, demand a witness, appraiser, or reference witness to appear for an inspection or investigation, and conduct verification.” Article 5(1) of the former Act provides that “When the plenary session or the Committee makes a request for a report or presentation of documents, etc. under this Act, or a witness, appraiser, or reference witness is requested to appear, the relevant person or the head of the relevant agency shall issue a written request,” and Article 5(5) of the same Act provides that “If a legitimate request for attendance of a witness is to be made, the request for attendance of a witness shall be served at least seven days before the date of the request for attendance of a witness, the Committee shall pass a resolution on the request for attendance of a witness, and shall not make a request for attendance of a witness under the former Act on the Inspection of State Administration.

C. On the grounds indicated in its reasoning, the lower court acquitted Defendants 1, 4, 5, 6, and 7, who did not appear as a witness at the hearing on January 9, 2017, on the ground that the evidence presented by the prosecutor alone was insufficient to recognize that there was a legitimate resolution of the Special Committee regarding the request for attendance of the witness at the hearing on January 9, 2017. Examining the reasoning of the lower judgment in light of the aforementioned provisions and the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine regarding the resolution of the Special Committee.

D. Meanwhile, the prosecutor appealed against Defendant 1 among the judgment below, but with the exception of the aforementioned judgment, the remaining parts are not indicated in the petition of appeal and there is no indication of grounds for objection in the appellate brief.

5. Conclusion

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

Justices Kim So-young (Presiding Justice)