[1] Whether the presiding judge is granted the right to refuse to testify under the Civil Procedure Act (negative), and where a witness who has lawfully taken an oath in a civil procedure makes a false statement without being notified of the right to refuse to testify, whether perjury is established (affirmative in principle)

[2] In a case where a defendant who was present as a witness in the civil procedure gives a false testimony without being notified by the presiding judge of the right to refuse to testify, the case holding that the judgment below which found the defendant not guilty on the ground that the defendant's act of lawfully making a false statement after being sworn as a witness constitutes perjury constitutes perjury

[1] The Criminal Procedure Act, along with the provision on the right to refuse to testify (Articles 148 and 149), provides for the presiding judge's duty to notify the right to refuse to testify (Article 160), while the Civil Procedure Act does not have a separate provision on the notification of the right to refuse to testify (Articles 314 through 316) while establishing the system for the right to refuse to testify. Unlike the Criminal Procedure Act which provides for the right to refuse to testify from the time when the Act was enacted on September 23, 1954, our legislators did not have a provision on the right to refuse to testify while establishing the Civil Procedure Act on April 4, 1960, and maintained the same position while completely amending the Civil Procedure Act on January 26, 202. In light of such legislative background and content, it appears to be a legislative choice that takes into account the difference in the purpose and application principle existing in both procedures, and thus, the Civil Procedure Act does not have any special provision on witness's right to refuse to testify in the legislative procedure that does not unreasonably infringe witness's right to refuse to testify (Article 324).

[2] In a case where a defendant who attends a civil procedure as a witness made a false testimony without being notified of the right to refuse to testify in accordance with Article 314 of the Civil Procedure Act even though he/she has the right to refuse to testify, the case holding that the judgment below which found the defendant not guilty on the ground that the defendant's act of lawfully making a false statement after completing an oath as a witness in accordance with the procedure under the Civil Procedure Act constitutes perjury and no special circumstance exists in the record but there is no legal basis to notify the right to refuse to testify in the civil procedure.

[1] Article 152(1) of the Criminal Act; Articles 148, 149, and 160 of the Criminal Procedure Act; Articles 314, 315, 316, 323, and 324 of the Civil Procedure Act / [2] Article 152(1) of the Criminal Act; Article 314 of the Civil Procedure Act

Defendant

Prosecutor

Chuncheon District Court Decision 2009No430 Decided December 11, 2009

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Chuncheon District Court Panel Division.

The grounds of appeal are examined.

1. Article 152(1) of the Criminal Act provides that “When a witness who has taken an oath under the law makes a false statement,” perjury shall be punished. Here, “a witness who has taken an oath under the law” means a witness who has taken an effective oath in accordance with the procedure prescribed by law based on the law, and the witness examination shall be a case where the procedural provisions prescribed by law have been complied with and has been duly made. Therefore, in a case where the provisions for the protection of a witness prescribed by the law are not observed in the witness examination procedure, even if a witness makes a false statement in the witness examination procedure, it cannot be punished for perjury because he does not constitute “a witness who has taken an oath under the law” (see Supreme Court en banc Decision 2008Do942, Jan. 21, 2010).

However, the Criminal Procedure Act, along with the provisions on the right to refuse to testify (Articles 148 and 149), provides for the presiding judge's right to refuse to testify (Article 160), while the Civil Procedure Act does not separately provide for the notification of the right to refuse to testify (Articles 314 through 316) while establishing the system for the right to refuse to testify. Unlike the Criminal Procedure Act which provides for the right to refuse to testify from the time of its enactment on September 23, 1954, our legislators did not provide for the notification of the right to refuse to testify while establishing the Civil Procedure Act on April 4, 1960, and maintained the same position while completely amending the Civil Procedure Act on January 26, 202 (Article 148 and Article 149). In light of the legislative background and provisions, it appears that the legislative method cannot be seen as a violation of the right to refuse to testify, such as the legislative purpose and application of the principle of witnesses existing in both procedures, and thus, the presiding judge cannot be seen as a witness's of perjury.

2. According to the reasoning of the judgment below, the court below acknowledged facts as stated in the judgment, and found the defendant's testimony in the civil procedure of this case as a witness is likely to be indicted or convicted by himself, and thus, the defendant has the right to refuse to testify pursuant to Article 314 of the Civil Procedure Act. Although there is no express provision on the right to refuse to testify under the Civil Procedure Act, this is merely a legislative defect, and thus, it is unlawful for the presiding judge to not notify the right to refuse to testify. Accordingly, the court below acquitted the defendant not guilty on the ground that the defendant who testified in the illegal witness examination procedure conducted without being notified the right

However, examining the evidence legitimately admitted by the court below in light of the legal principles as seen earlier, the court below erred by misapprehending the legal principles on notification of the right to refuse to testify in civil proceedings, thereby adversely affecting the conclusion of the judgment, even though the defendant's act of lawfully making a false statement after being sworn as a witness pursuant to the procedure prescribed in the Civil Procedure Act constitutes perjury and no special circumstances exist in the record.

The grounds of appeal pointing this out are with merit.

3. Therefore, the non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)