위증죄에 있어서 허위성 판단대상인 사실진술의 범위와 그 허위성에 대한 판단방법 (A Range of Fact Statement, which is a Subject of Judgment for the Falsity, and a Manner of Judging the Falsity in the Offense of False Testimony)

서지정보

· 발행기관 : 중앙법학회
· 수록지 정보 : 중앙법학 / 12권 / 1호 / 231 ~ 258페이지
· 저자명 : 신치재

초록

Object of judgment: The Supreme court 2007. 10. 26. Adjudication 2007do5076 judgment.


In the Offense of False Testimony, the stance of the Supreme Court about a range of fact statement and a manner of judging the falsity can be concluded as follows.
1. The subject of fact statement is limited to the fact, and it doesn’t include the value perception. The content of a statement is a subject of examination of a witness, and every statement can be the content of a statement. A judicial opinion and a judicial precedent do not require a statement to be a certified fact or a fact influencing the trial. However, in my opinion, I agree with the opinion of not requiring a certified fact of the statement, but I believed that the opinion of not requiring a statement to be influential should be excluded.
2. The protective legal interest of the Offense of False Testimony is a reasonable realization of judicature power through discovery of the truth, and a degree of this protection is an abstract dangerous delict. This point of view is a coherent position of the Supreme Court. According to this nature, since a false statement, which is a required act of the Offense of False Testimony, must be based on the objective falsity, the objective theory is appropriate.
Meanwhile, The Offense of False Testimony is an expressive delict implying the distortion of a doer’s subjective and internal condition from the first place or the falsified representation.
Since the false statement of a doer is premised on the subjective and inner memory and the discordance of statements, which is a subjective falsity, from the beginning, the subjective theory is proper as well.
The falsity in a false statement of the Offense of False Testimony includes the subjective falsity and the objective falsity. In other words, when a statement is about an external fact, the statement becomes a false statement if the statement is not only dissonant with a subjective fact but also with a subjective memory.
At this time, an element of a subjective falsity, which is discordant with a stater’s memory, is differentiated from an intention because an intention is an awareness of the fact that a statement is not coincide with an objective truth. Therefore, an intention does not have a direct relation with an idea of falsity.

영어초록

Object of judgment: The Supreme court 2007. 10. 26. Adjudication 2007do5076 judgment.


In the Offense of False Testimony, the stance of the Supreme Court about a range of fact statement and a manner of judging the falsity can be concluded as follows.
1. The subject of fact statement is limited to the fact, and it doesn’t include the value perception. The content of a statement is a subject of examination of a witness, and every statement can be the content of a statement. A judicial opinion and a judicial precedent do not require a statement to be a certified fact or a fact influencing the trial. However, in my opinion, I agree with the opinion of not requiring a certified fact of the statement, but I believed that the opinion of not requiring a statement to be influential should be excluded.
2. The protective legal interest of the Offense of False Testimony is a reasonable realization of judicature power through discovery of the truth, and a degree of this protection is an abstract dangerous delict. This point of view is a coherent position of the Supreme Court. According to this nature, since a false statement, which is a required act of the Offense of False Testimony, must be based on the objective falsity, the objective theory is appropriate.
Meanwhile, The Offense of False Testimony is an expressive delict implying the distortion of a doer’s subjective and internal condition from the first place or the falsified representation.
Since the false statement of a doer is premised on the subjective and inner memory and the discordance of statements, which is a subjective falsity, from the beginning, the subjective theory is proper as well.
The falsity in a false statement of the Offense of False Testimony includes the subjective falsity and the objective falsity. In other words, when a statement is about an external fact, the statement becomes a false statement if the statement is not only dissonant with a subjective fact but also with a subjective memory.
At this time, an element of a subjective falsity, which is discordant with a stater’s memory, is differentiated from an intention because an intention is an awareness of the fact that a statement is not coincide with an objective truth. Therefore, an intention does not have a direct relation with an idea of falsity.

참고자료

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