증언거부권의 불고지와 위증죄

Abstract

The Right to testify is based on the Privilege against self incrimination. This Privilege is declaratory of the common law, describes the Privilege as the right of a person in criminal proceedings to refuse to answer any question, or produce any document or thing, if to do so would tend to expose that person to proceedings for an offence or for recovery of a penalty. the Privilege is designed to protect a person from being compelled by the State to convict himself out of his own mouth. The privilege must be claimed on oath by the person who want to rely on it. Therefore Bar can not claim this privilege on his client's behalf. The Right to testify is very important right to the witness, and notifying this right to the witness is very important duty of the judge. So Unless the judge said the The Right to testify to the witness before examining the witness in the trial, The Oath of the witness is not valid. Therefore the witness can not be punished because of perjury. In Case1,2, The Court said that perjury is depending on the whether or not testimonial privilege is violated substantially. But whether testimonial privilege is violated or not must be estimated true to formal procedure. After all Decisoin of Case3,4 is reasonable. Because the examination of a witnesses without notifying The Right to testify is not valid.