위증죄에 관한 실체법적 및 절차법적 쟁점

Abstract

The substantive law and adjective, when it comes to criminal law, always form an interdependent relationship, and the crime that typically demonstrates this characteristic is perjury. Perjury serves as a role of preventing any harm, or factors that jeopardize just judgment, given to hearing that is carried out in order to seek substantive truth by the court or judging authority through securing the accuracy of the witness’s statement ensured under oath. Under the 1st clause of Article 152 of the Criminal Law, the perjury is regulated as this: “the witness who made an oath by law and then gives a false statement will face up to five years in prison and a maximum 10 million won in fines”. It is true that the conventional debates on the perjury were mainly focused on the perspective of the benefit and protection of the law with regard to what false witness means that is an objective constituent, confrontation of theories involved in the time of consummation and investigation of the precedents. This indicates that perjury was mostly discussed by the approach of substantive law. In recent years, however, the trend of using the approach of adjective law is fast growing in dealing with perjury, escaping from the conventional way of discussion. The main reason of such a change can be found in the current of the Supreme Court’s cases lately sentenced regarding perjury. In light of this recent trend, it is no longer possible to find a clue in order to identify the issues of perjury if we continue to remain in the approach of substantive law. In this regard, it is required that we need some in-depth examination of the approach of adjective law for several issues of examination of a witness prescribed in the Criminal Procedure Law, such as obligation of oath, eligibility of witness, right for refusal of witness, the distinction between the procedure of witness examination and procedure of witness oath, the target of the witness for statement and the range of statement, the status of co-defendant, and separation of legal procedure.