Right Against Self-Incrimination in Korea

In a Korean trial known as the “Namsan 300 Million Won Case,” two prominent figures, former Shinhan Bank Chairman Shin Sang-hoon and former Shinhan Bank President Lee Baek-soon of Shinhan Financial Group, were acquitted on charges of perjury. The judgment has sparked controversy and raised important questions about the status of witnesses when they themselves are criminal defendants in a case in Korea. Shinhan Bank is one of the largest banks in Korea.

Background of the “Namsan 300 Million Won Case”

The case revolves around allegations that former Shinhan Bank President Lee Baek-soon, under the direction of Chairman Ra Eung-chan of Shinhan Financial Group in February 2008 delivered 300 million Korean won in cash to an unidentified individual suspected to be a significant figure in the administration of President Lee Myung-bak. This cash was allegedly disguised as a congratulatory gift for President Lee’s election victory. The former President of the Republic of Korea, President Lee was prosecuted and imprisoned for corruption charges.

Former Shinhan Chairman Shin Sang-hoon was accused of embezzling a total of around 1.5 billion won under the pretext of management consulting fees between 2005 and 2009, with former Shinhan President Lee Baek-soon as an accomplice. Both individuals faced initial prosecution in 2010 but were later acquitted.

The first trial court concluded with a verdict of innocence for both defendants. The court based its decision on the premise that witnesses who are also co-defendants cannot testify against each other unless the proceedings are separated. The second trial court (appeal of first trial) upheld the verdict, albeit for different reasons. Relying on Korean Supreme Court precedent, this appellate court in Korea acknowledged that even if witnesses are considered eligible to testify based on their roles as accomplices, their position as defendants takes precedence over their role as witnesses. Consequently, they cannot be charged with perjury for providing false testimony related to their own crimes. In Korea, a defendant in a case can not be prosecuted for perjury even if the defendant is found to have lied in court.

Prosecutors, dissatisfied with the ruling, appealed, arguing that witnesses who are also co-defendants should be granted the ability to testify, and if they commit perjury concerning their co-defendants, the charge of perjury should be applicable. They also requested separate trials to examine the credibility of the accomplices’ statements. However, the appellate court rejected the appeal, stating that the first trial court’s decision to dismiss the witnesses’ eligibility was inappropriate. Nevertheless, the court maintained that there were no legal errors in determining that perjury charges were illegal under Korean law.

Implications for the Right of Self-Incrimination in Korea

The Korean court’s ruling presents a contrasting viewpoint to a previous Supreme Court precedent (2008 Supreme Court Decision No. 3300), which recognized the witness eligibility of co-defendants once the trial proceedings were separated from their status as defendants. In this case, the court in Korea emphasized the right to refuse self-incrimination, which is protected under Article 12, Section 2 of the Constitution, and the specific right to refuse to testify under Article 283-2, Section 1 of the Criminal Procedure Act. The court reasoned that although co-defendants can serve as witnesses regarding their accomplices’ charges, they retain their position as defendants and are not obliged to testify against themselves. Consequently, even if they provide false statements within the scope of their defense, they cannot be punished for perjury. Yes, lying in a Korean court if you are defendant can not lead to perjury charges.

The controversial judgment in the “Namsan 300 Million Won Case” has ignited a debate surrounding the status of witnesses who are also defendants in a trial. The court’s emphasis on the right to refuse self-incrimination and the preservation of the defendant’s position sheds light on the intricate balance between witness testimony and the defendants’ rights. This landmark judgment is expected to spark debate. We shall update the reader when more information becomes available.

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