Background
The defendant worked as a construction department manager at a construction company operated by Party A. The defendant and Party A were jointly indicted as accomplices on fraud charges arising from a construction project: they allegedly submitted computer-manipulated site photographs to the construction ordering body through a supervision team, falsely representing that construction had been performed according to design drawings when in fact a different construction method had been used, thereby fraudulently obtaining construction payments.
The legal proceedings against the defendant and Party A were subsequently separated. Once the defendant no longer held co-defendant status in Party A’s proceedings, the defendant was called as a witness in Party A’s trial. The defendant testified falsely, claiming to have received instructions from Party A to manipulate the site photographs — instructions the defendant in fact never received. The defendant was then separately indicted for malicious perjury (perjury committed with the purpose of harming another) under Korean criminal law.
A central issue before the courts was whether a co-defendant who is also an accomplice can lawfully serve as a witness concerning facts charged against the other co-defendant once their proceedings have been severed — and whether such testimony can form the subject matter of a perjury or malicious perjury charge.
The Court’s Holding
The Supreme Court of Korea, sitting en banc, affirmed the lower court’s guilty verdict on the malicious perjury charge. The Court held, first, that a co-defendant who is an accomplice does acquire witness qualification with respect to facts charged against the other co-defendant once the co-defendant no longer holds defendant status due to the separation of proceedings. This reaffirms the existing Supreme Court doctrine on the point.
The Court further held that this existing legal doctrine — under which an accomplice co-defendant, after severance of proceedings, may validly be sworn as a witness regarding the other co-defendant’s charged conduct — should be maintained. Accordingly, the defendant’s sworn testimony in Party A’s trial was testimony given under a legally valid witness oath, capable of grounding a perjury charge.
Because the defendant made false statements in that testimony — specifically, fabricating that Party A had directed the photo manipulation — and did so with the purpose of harming Party A, the elements of malicious perjury were satisfied. The lower court’s finding of guilt was upheld.
Key Takeaways
- Once criminal proceedings are formally severed, a former co-defendant who was an accomplice gains full witness qualification in the remaining proceedings against the other defendant, including the obligation to testify truthfully under oath.
- False testimony given by such a witness, where made with the purpose of harming the accused, constitutes malicious perjury under Korean law, even though the witness and the accused were originally tried together as accomplices.
- The Supreme Court, sitting en banc, expressly confirmed that its prior doctrine on accomplice witness qualification remains good law and is not to be departed from.
Why It Matters
This en banc decision settles any lingering uncertainty about the evidentiary and criminal-liability status of accomplice testimony following severance of proceedings in Korea. Defense practitioners and prosecutors alike must now operate with clarity that an accomplice who has been severed out of a joint trial is not merely a competent witness — they are subject to full perjury liability if they testify falsely with intent to harm the remaining defendant.
The ruling also has broader implications for joint criminal enterprise cases, particularly in white-collar and fraud matters where co-defendants frequently seek separate trials. The prospect of malicious perjury liability may deter accomplices from fabricating testimony that shifts blame onto former co-defendants, reinforcing the integrity of testimony in severed proceedings.