위증죄에 있어서 사실진술의 기대가능성에 대한 판단기준 -유죄판결이 확정된 피고인의 증언거부권과 관련하여-

Abstract

Object of judgment: The Supreme court 2008. 10. 23. Adjudication 2005do10101 judgment. In here, the Supreme Court’s position of a standard of judgment for the possibility of expectation of a statement in an offense of false testimony related to right to refuse testification of the accused who is convicted guilty in The Supreme court 2008. 10. 23. Adjudication2005do10101 judgment is contemplated. I like to finalize the annotation with the following summary about the Supreme Court’s judgment. First, since the reason why the right to refuse testification is not acknowledged for the accused who is convicted guilty and the problem regarding the accused, who are questioned to be expected to testify from perspective of average man instead of the offender’s under the concrete condition at the time of the act in a ground of the release from liability, are two different subjects, among the Supreme court’s reasons  for the judgment , the reason stating that the original judgment  is a violation of law because it influenced the judgment by misunderstanding  the principle of the right to refuse testification is reasonable. Therefore, The original court’s judgment are appropriate because it differentiated between the right to refuse testification of the accused who is convicted guilty in a mater of separate complicity  and a matter of the possibility of expectation of statement about the truth if the accused testified. Second, since a possibility of expectation to legal act should be judged based on the concrete condition at the time of the act from perspective of particular doer in specific case, the theory of average man which is the position of the precedent is confused illegality with liability. Also, the concept of the average man or the conscientious average man is not defined well enough. In addition, the possibility of expectation to legal act is not appropriate because if a judge emphasizes an average man’s national legal system or a duty of abiding-law as the basis of an argument in order to justify his or her judgment in a fictional concept, it is possible to end up the theory of state, which is very risk. Therefore, The Supreme Court’s judgment, which remands after reversal the original court’s judgment by accepting an appeal of the prosecutor who asserts that there is a violation of law influenced by the original judgment’s misunderstanding of the right to refuse testificatoin and the possibility of expectation’s legal principal, is not reasonable.