증언거부권과 위증죄의 성부 - 판례이론의 분석을 중심으로 -

The right to refuse to testify grants a right to refuse to implement the duty of testimony to a witness. The notification of the right in Article 160 of Criminal Procedure Code confirms the presence of the right to a witness, offers him or her enough opportunities to contemplate over whether to remain silent or make a statement, and thus guarantees him or her the right to remain silent. The Supreme Court recognizes the establishment of perjury when a witness makes a false statement even after the notification of right to refuse to testify. The exercise of right to refuse to testify, however, is not the duty of a witness but a right. The act of a witness holding someone else accountable with a false statement to maintain his or her innocence is beyond the limits of Article 12, Clause 2 of Constitution, which prohibits a pressure to make an unfavorable statement. It is valid, however, to admit that there can be cases to deny perjury because of exceptional circumstances not to expect a truthful testimony rather than recognizing perjury unconditionally in the other cases. The Supreme Court finds no perjury in witnesses that make a false statement without being notified of right to refuse to testify because they are not “witnesses that made an oath by law.” It, however, leaves the possibility of perjury open in cases where the right to refuse to testify is notified. That is, it recognizes the establishment of perjury when a witness is not notified of right to refuse to testify and has no de facto obstacles to its exercise based on a total and comprehensive consideration of specific situations in which the witness is at the time of testimony, content of reasons to refuse to testify, whether the witness already knew the reasons to refuse to testify or the right to refuse to testify, and any circumstances to assume that the witness made a false statement even after the notification of right to refuse to testify. It is, however, not valid that the Supreme Court makes a de facto obstacle a criterion to judge perjury. Associating a de facto obstacle with the establishment of perjury seems to make a contribution to witness protection on the surface, but it works as an instrument to expand the punishability of perjury in reality. The notification of right to refuse to testify is a legal device devised by the legislators to protect a witness and a very important provision to observe the principle of prohibiting pressure on unfavorable statements in the Constitution. Absence of notification of right to refuse to testify is a major violation of due process. When a witness makes a false statement without being notified of right to refuse to testify, his or her liability for perjury should be denied without considering other causes.