【Holding】

[1] Where a co-defendant who is an accomplice has been removed from the status of a defendant through the separation of the proceedings, whether he or she may become a witness with respect to the charged facts against another co-defendant (affirmative) / With respect to the subject of the crime of perjury, whether the current legal doctrine of the Supreme Court on whether a co-defendant who is an accomplice is competent to testify as a witness with respect to the charged facts against another co-defendant should be maintained (affirmative)

[2] In a case where the defendant, who had worked as the head of the engineering department of a construction company operated by A, was indicted together with A, the operator of the company, as accomplices on charges including defrauding the project owner of construction payments by submitting, through the supervision team, site photographs manipulated by computer to make it appear as if the construction had been carried out in accordance with the design drawings even though it had been carried out using a construction method different from the design drawings, and, when testifying as a witness against the other co-defendant A, was indicted for committing perjury with intent to harm A by making false statements to the effect that A had participated in the crime, such as that the defendant had received instructions from A to manipulate the site photographs when in fact no such instructions had been received, and the issue was the "competence of a co-defendant who is an accomplice to testify as a witness" in relation to the subject of the crime of perjury with intent to harm, the Court held that the lower court's judgment finding the defendant guilty, on the premise that the defendant testified with respect to the charged facts against A while the proceedings against the defendant and A were separated, on the ground that the defendant made false statements with intent to harm A, was justified

【Summary of Decision】

[1] [Majority Opinion] In Supreme Court Decision 2008Do3300, June 26, 2008, Decision 2012Do6848, 2012Jeon-Do143 (consolidated), October 11, 2012, Decision 2010Do10028, December 13, 2012, Decision 2023Do7528, February 29, 2024, and other decisions, the Supreme Court held that "a co-defendant who is an accomplice, being in the status of a defendant in the relevant proceedings, cannot become a witness with respect to the charged facts against another co-defendant, but once the proceedings are separated and he or she is removed from the status of a defendant, he or she may become a witness with respect to the charged facts against another co-defendant" (this precedential doctrine is hereinafter referred to as the "current doctrine").

With respect to the subject of the crime of perjury, the current doctrine on whether a co-defendant who is an accomplice is competent to testify as a witness with respect to the charged facts against another co-defendant is sound and should be maintained. The reasons are as follows.

(A) A "witness" refers to a third party who states, in trial proceedings and the like, facts that he or she has experienced in the past. Since Article 146 of the Criminal Procedure Act provides that "the court may examine any person as a witness unless otherwise provided by law," it should be understood that, unless otherwise provided by law, any third party other than the defendant, who is a party to the case in question, may become a witness. Even a co-defendant who is an accomplice may become a witness in the separated proceedings against another co-defendant, because he or she is no longer in the status of a defendant in those proceedings.

(B) In order to guarantee the constitutional privilege against self-incrimination, namely that "no citizen shall be compelled to testify against himself or herself in criminal cases," Article 148 of the Criminal Procedure Act provides that "any person may refuse to give testimony that is likely to reveal facts for which he or she may be subject to a criminal conviction," and in order to guarantee the right to refuse testimony, Article 160 of the Criminal Procedure Act provides that "the presiding judge shall explain, before the examination, that the witness may refuse to testify"; therefore, so long as this right to refuse testimony is substantively guaranteed, recognizing the competence of a co-defendant who is an accomplice to testify as a witness after the proceedings against him or her have been separated, and questioning him or her regarding the facts of his or her own crime, cannot be said to infringe the right to remain silent or the privilege against self-incrimination that he or she holds as a defendant. If a defendant whose competence as a witness is thus recognized, despite having been informed of the right to refuse testimony pursuant to Article 160 of the Criminal Procedure Act in the witness examination procedure, makes false statements regarding the facts of his or her own crime without exercising the right to refuse testimony, the crime of perjury is established.

In this regard, the Supreme Court has held that where a witness was not informed of the right to refuse testimony even though the matter concerned the privilege against self-incrimination or there were other grounds for refusing testimony, such that it can be regarded that a practical obstacle to the exercise of the right to refuse testimony was created, the establishment of the crime of perjury must be denied; and accordingly, trial practice has developed in the direction of thorough direction of proceedings, such as informing witnesses of the right to refuse testimony clearly and in an easily understandable manner. Taking such trial practice into account as well, recognizing the competence of a co-defendant who is an accomplice to testify as a witness on the premise of the separation of proceedings cannot be regarded as directly resulting in an infringement of the "right not to be compelled to make statements unfavorable to oneself in criminal cases."

(C) The concern that exercising the right to refuse testimony would be difficult in practice because it could be taken as an implication of guilt as to the facts of one's own crime is not essentially different from the concern that, in other phases of the trial proceedings such as the examination of the defendant rather than the examination of witnesses, the defendant's silence could give rise to a conviction of guilt in the mind of the judge. In a criminal trial, a finding of guilt must be based on evidence of probative value sufficient to give the judge a conviction that the charged facts are true beyond a reasonable doubt, and if there is no evidence forming such a degree of conviction, the matter must be resolved in favor of the defendant even if there is suspicion of the defendant's guilt. Therefore, such a concern does not warrant denying the very competence of a co-defendant who is an accomplice to testify as a witness against another co-defendant.

(D) The competence of a co-defendant who is an accomplice to testify as a witness cannot be viewed differently merely because the proceedings were not finally separated but only temporarily separated, such as where it is planned that, after separating the proceedings and examining the co-defendant who is an accomplice as a witness, the proceedings will be consolidated again and tried together with the other co-defendant.

The consolidation or separation of proceedings is carried out in consideration of various circumstances, such as judicial economy and the speedy trial, the demand for discovering the substantive truth, the convenience of proof by the prosecution or of defense by the defendant, the need for equity in the handling of cases among accomplices, uniform fact-finding, and balance in sentencing, and the advantages and disadvantages of consolidated or separate trial in the specific case, and the choice of consolidation or separation and the manner of its use fall within the discretion of the court (Article 300 of the Criminal Procedure Act). The view that a temporary separation of proceedings is merely formal and notional and that the competence of a co-defendant who is an accomplice to testify as a witness cannot be recognized in such a state of separation is, in substance, tantamount to calling into question the court's discretionary judgment on the conduct of proceedings.

In addition, even where the proceedings are finally separated for each co-defendant (the same applies where the accomplices were indicted separately from the outset), if the same trial court tries those cases in parallel, this cannot be regarded as particularly different from a temporary separation of proceedings in terms of the formation of the judge's conviction; therefore, unless one takes the view that accomplices can never be witnesses for one another with respect to the criminal facts in question, it is not reasonable to distinguish between the final and temporary separation of proceedings and to hold that the current doctrine applies only to the former.

(E) There is also a practical need to recognize the competence of a co-defendant who is an accomplice to testify as a witness. In types of cases in which the crime was committed by multiple persons or through organized conspiracy—such as drug crimes, telecommunications-based financial fraud (voice phishing, etc.), the operation of illegal gambling sites, and the formation of or activities in criminal organizations—and in which objective physical evidence of such conspiracy or participation in the crime is unlikely to exist, there are aspects of the charged facts that can in practice be proved only by the statements of accomplices; therefore, in light of the purpose of criminal procedure, namely the speedy discovery of the substantive truth through due process, it is necessary to secure the accuracy of the statements made by a co-defendant who is an accomplice where the proceedings against the accomplices are conducted in consolidated form. To this end, the method of witness examination—which imposes a duty of truthfulness on the co-defendant who is an accomplice while clearly warning that a breach thereof will be punished as perjury, and has him or her make statements after taking an oath and while being subject to cross-examination by the other co-defendant—is more suitable than the method of examination of the defendant, which is not accompanied by the sanction of punishment for perjury and in which the other co-defendant's right of cross-examination may be difficult to guarantee substantively because of the right to remain silent. This is all the more so considering that our Criminal Procedure Act contains no express provision concerning the right of a co-defendant to examine another co-defendant who is an accomplice, and that the examination of the defendant is, in principle, conducted after the completion of the examination of evidence by questioning the defendant on matters necessary concerning the charged facts and the circumstances (main text of Article 296-2(1) of the Criminal Procedure Act), with the primary purpose of having the defendant express his or her opinion or position, and is not intended to ask the defendant about facts he or she experienced in relation to the suspected criminal facts of another co-defendant.

[Dissenting Opinion by Justice Oh Kyung-mi] Even where the proceedings against a co-defendant who is an accomplice have been separated, if the separation can be regarded as not final but merely temporary, then even if the co-defendant who is an accomplice makes statements as a witness with respect to the charged facts against another co-defendant, insofar as he or she made statements in response to questions relating to the facts of his or her own suspected crime, the defendant has, as to that portion of the statements, in substance made statements in the status of a defendant. Therefore, in such a case, his or her competence as a witness cannot be recognized, and even if he or she made false statements, they cannot be punished as perjury.

In this respect, this opinion differs from the Majority Opinion, which holds that once the proceedings have been separated, even temporarily, a co-defendant who is an accomplice is always competent as a witness without any particular limitation, as a third party who is not a defendant, and that accordingly all false statements he or she made regarding the facts of his or her own suspected crime may be punished as perjury.

[2] In a case where the defendant, who had worked as the head of the engineering department of a construction company operated by A, was indicted together with A, the operator of the company, as accomplices on charges including defrauding the project owner of construction payments by submitting, through the supervision team, site photographs manipulated by computer to make it appear as if the construction had been carried out in accordance with the design drawings even though it had been carried out using a construction method different from the design drawings, and, when testifying as a witness against the other co-defendant A, was indicted for committing perjury with intent to harm A by making false statements to the effect that A had participated in the crime, such as that the defendant had received instructions from A to manipulate the site photographs when in fact no such instructions had been received, and the issue was the "competence of a co-defendant who is an accomplice to testify as a witness" in relation to the subject of the crime of perjury with intent to harm, the Court held that, since the current legal doctrine of the Supreme Court that "a co-defendant who is an accomplice, being in the status of a defendant in the relevant proceedings, cannot become a witness with respect to the charged facts against another co-defendant, but once the proceedings are separated and he or she is removed from the status of a defendant, he or she may become a witness with respect to the charged facts against another co-defendant" is sound and should be maintained, the lower court's judgment finding the defendant guilty, on the same premise that the defendant testified with respect to the charged facts against A while the proceedings against the defendant and A were separated, on the ground that the defendant made false statements contrary to his or her memory with intent to harm A, was justified.

【Referenced Statutes】

[1] Article 12(2) of the Constitution; Article 30 and Article 152 of the Criminal Act; Article 146, Article 148, Article 150, Article 160, Article 161(1), Article 161-2, Article 283-2, Article 294(1), Article 296-2, Article 300, Article 308, Article 312(1) and (3) of the Criminal Procedure Act [2] Article 30 and Article 152(2) of the Criminal Act

【Referenced Precedents】

[1] Supreme Court Decision 2008Do3300, June 26, 2008 (Gong2008Ha, 1487)
Supreme Court en banc Decision 2008Do942, January 21, 2010 (Gong2010Sang, 465)
Supreme Court Decision 2012Do6848, 2012Jeon-Do143, October 11, 2012
Supreme Court Decision 2010Do10028, December 13, 2012
Supreme Court Decision 2023Do7528, February 29, 2024