위증죄에 대한 몇 가지 소고

Abstract

Perjury is a crime to punish intentional lying under oath. It is stipulated by the criminal law as a crime which harms national legal benefits. Perjury has a specificity that it strictly restricts its subject. Therefore, the subject must be clarified to understand perjury. Only the witnesses who have sworn to a law can be the subject of perjury. The scope of perjury could be varied by how to interpret the conditions of “law”, “oath”, and “witness.” The definition of the “oath incompetent” is important for the oath. Since an oath taken by the incompetent is ineffective, perjury cannot be established simply by the fact that the person made a false statement. Meanwhile, for the range of the witness, court cases make the boundary of the witness and the defendant ambiguous with rigid logic. It opens it to criticism by enlarging the range of the possible witness consequently that it unfairly expands the scope of perjury. The next issue is the form of perjury. Making a wrong statement consists of a crime of perjury. The cases take a subjective theory that perjury is established when there is a statement against one's memory, whether it is true or false. In contrast to the cases, there is an objective theory which sees a statement contrary to reality truth as false statement. However, in the explanation of our criminal law, the position of the cases seems more reasonable. Lastly, there is an issue of the right not to testify and the establishment of perjury. The condition that a testimony was made without being notified the right not to testify does not nullify an established perjury by itself. However, it would be too harsh to approve perjury even for the cases the right of the witness was damaged by not being notified the right not to testify. Moreover, the cases and the law do not adopt notifying the right not to testify for testimony procedures out of criminal proceeding, which needs a reconsideration following the legislative theory. There clearly are some parts, of the stances of the precedent cases of perjury, to be criticized. To assure the truthfulness of judicial procedure and to raise the regulative force of perjury, contradictory and unfair conclusions on perjury needs to be revised.