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The judgment below
The part concerning perjury is reversed, and this part of this case is to the Suwon District Court Panel Division.
Reasons
1. We examine the grounds of appeal on fraud.
The judgment below
In light of the reasoning and the evidence duly admitted by the court below, the court below was justified in finding guilty of fraud among the facts charged in this case on the grounds stated in its reasoning. Contrary to the allegations in the grounds of appeal, the court below 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 principles on the establishment
2. Determination ex officio as to perjury
The right to refuse to testify under the Criminal Procedure Act provides that a witness has the right to refuse to perform his/her duty to give testimony, and the notification system of the right to refuse to give testimony aims to ensure the right to silent by sufficiently providing a witness with an opportunity to consider whether to allow him/her to confirm the existence of such right or make a statement. In light of the above, even in cases where a presiding judge has not notified the right to refuse to give testimony before examination, the establishment of perjury should be determined based on the comprehensive consideration of the following: (a) the specific situation of a witness at the time of testimony in question; (b) the reason for refusing to give testimony; (c) the reason for refusing to give testimony; (d) whether a witness has already been aware of the reason for refusing to give testimony or the existence of the right to refuse to give testimony; and (e) whether a witness makes a statement
Therefore, the establishment of perjury should be denied in cases where it is related to the privilege against self-incrimination, which embodys the principle of prohibition of coercion of unfavorable statements as stipulated in Article 12 (2) of the Constitution, or where it can be deemed that the exercise of the right to refuse to testify is practically hindered due to the failure of the witness to be notified of the right to refuse to testify.