Korean supreme court in the en banc decision of 2008do942 newly set up the relationship between perjury and right to refuse to testify. Korean supreme court decided that it should be considered whether right to refuse to testify is violated by considering total circumstances even when a judge did not notify right to refuse to testify. In other words, perjury does not stand when it were an obstacle to exercise right to refuse to testify. The korean supreme court’s decision shows the unique structure of connecting right to refuse to testify with the subject requirement of crime of perjury.
Many korean scholars understand the court’s decision en banc so much formally. Following their views, perjury does not stand if the mere fact of non-notification of right to refuse to testify may deny validity of an oath of witness. In contrast, just like the en banc decision of korean supreme court of 2008도942, a substantive approach raises its voice that right to refuse to testify in establishing perjury actually means prohibition of coercion of testimony. The most substantive views contents that, just like the past decisions of korean supreme court, the possibility of excuse should be taken into consideration based on the category of ‘a possibility of expectation to legal act’in case of non-notification of right to refuse to testify. In short, this paper would like to pay attention to the viewpoint that substance of right to refuse testify should be taken seriously, in relation with establishment of perjury.
The real issue of the court decisions should not be on mere compliance of formal and procedural duty. The court’eye should placed on the identification of unfair circumstances that can vitiate possibility of a witness’ testimony with his or her own free will. A single factor of non-notification should not make conclusive effect. Rather, based on the factor of non-notification, perjury is not established only when substantive possibility of choice of testify was denied.

• 강우예(한국해양대학교 법학부 부교수, 법학박사) | Kang, Wu Ye