[25-1 KCCR 180, 2010Hun-Ba132, March 21, 2013]

A. Background of the Case

In this case, the Constitutional Court ruled that Presidential Emergency Decree No. 1 (enacted by Presidential Emergency Decree No. 1 on January 8, 1974, and repealed by Presidential Emergency Decree No. 5 on August 23, 1974), No. 2 (enacted by Presidential Emergency Decree No. 2 on January 8, 1974), and No. 9 (enacted by Presidential Emergency Decree No. 9 on May 13, 1975, and repealed by Presidential Announcement No. 67 on December 7, 1979) (hereinafter collectively referred to as “Emergency Decrees”) issued in accordance with Article 53 of the former Constitution (amended by Constitution No. 8 on December 27, 1972, but before amendment by Constitution No. 9 on October 27, 1980; hereinafter referred to as the “Yushin Constitution”) violated the Constitution, declaring that the Court has the proper jurisdiction to conduct constitutional review of those Emergency Decrees.

Emergency Decrees were issued up to No. 9 under the Yushin Constitution, and many people who had a critical attitude toward the government were punished based on the Emergency Decrees. Although the Emergency Decrees had been criticized for their unconstitutional elements, it was impracticable to judge the unconstitutionality thereof at the time because of the harsh atmosphere of the times and the provisions of the Yushin Constitution prohibiting judicial review of the Emergency Decrees. In the 2000s, however, the retrial of cases relating to violations of Emergency Decrees was initiated in an effort toward historical fact-finding, and the question of the constitutionality of the Emergency Decrees which were applicable to the retrial cases surfaced.

While seeking the review of the final and conclusive judgment on the case of the Emergency Decree violation, the petitioners filed this constitutional complaint against Article 53 of the Yushin Constitution and Emergency Decree Nos. 1, 2, and 9, which constituted the prerequisites for review.

Meanwhile, prior to this decision, the Supreme Court held Emergency Decree No. 1 unconstitutional. On December 16, 2010, the Supreme Court ruled in the 2010Do5986 Decision that Emergency Decree No. 1 infringes on the people’s fundamental rights without meeting the constitutional requirements for issuance thereof and is unconstitutional and invalid, contending that any Act subject to the

Constitutional Court’s constitutional review must be either one passed by the National Assembly in the form of Act or one having substance that can be evaluated as the exercise of legislative power by the National Assembly, such as the consent or approval of the National Assembly, while Emergency Decrees lack such substance and therefore are not subject to the Constitutional Court’s constitutional review, in which the authority to review constitutionality rests with the Supreme Court.

B. Summary of the Decision

The Constitutional Court ruled that Emergency Decree Nos. 1, 2 and 9 violate the Constitution.

First, the Constitutional Court excluded the Yushin Constitution from the subject matter of review and judged only Emergency Decrees based on various formal issues. The Constitutional Court held that, as Emergency Decrees have the effect of Acts, the authority to review the constitutionality of Emergency Decrees originally rests with the Constitutional Court. The Constitutional Court also ruled that, with regard to the normative standard for reviewing the constitutionality of Emergency Decrees, the basis for judging the constitutionality of Emergency Decrees is not the Yushin Constitution but the current Constitution. Further, the Constitutional Court found that that there is now no obstacle to the constitutional review of the Emergency Decrees, though they were excluded from judicial review at the time the Yushin Constitution was in force.

Unlike Emergency Decree Nos. 1 and 2, for which the decision to initiate judicial review proceedings was made in the case in question, Emergency Decree No. 9 was beside the point in the case. The Constitutional Court, however, included Emergency Decree No. 9 in the prerequisites for review on the grounds that the petitioners had had no chance to challenge the constitutionality of Emergency Decree No. 9 at the time they had been finally convicted of the violation thereof.

In the trial on the merits, the Constitutional Court ruled that Emergency Decree No. 1, which prohibited criticizing the Yushin Constitution and asserting amendment to the Yushin Constitution and punished the fabrication of groundless rumors, and if violated, allowed arrest, detainment, seizure or search without a warrant issued by a judge, and Emergency Decree No. 2, which was the law on organization of the Emergency Courts-Martial established to judge those who violated Emergency Decree No. 1, do not conform to the principle of national sovereignty and the basic free and democratic order that constitute the fundamental principles of the Constitution, nor meet the legitimacy of purpose and the appropriateness of means required for restricting the fundamental rights. In detail, it held that Emergency Decree Nos. 1 and 2 punished any act of simply

expressing one’s views on the Constitution, regardless of the necessity of the invocation of the national emergency right, without specifying acts subject to the punishment, thus abusing the state’s authority to punish, beyond the legitimate restriction on the freedom of expression, violating the rule of clarity under the principle ofnulla poena sine lege, and infringing on suffrage related to the exercise of the people’s power to amend the Constitution, the right to national referendum, the doctrine of arrest by warrants, personal liberty, and the right to trial by a judge.

Further, the Constitutional Court ruled that Emergency Decree No. 9 does not meet the legitimacy of purpose and the appropriateness of means. Concretely, it held that Emergency Decree No. 9 prohibited any assembly, demonstration, political activity of students and authorized the competent Minister to take measures to expel any student violating such prohibition from the school or to temporarily or permanently close the school affiliated with such student, thereby infringing on the essential aspects of students’ freedom of assembly and demonstration and the principle of academic freedom and campus autonomy, as well as violating the principle of personal responsibility under the Constitution by punishing the school or organization affiliated with such student. It also added that prohibiting the assertion of amendment to the Yushin Constitution and punishing the fabrication of groundless rumors violate the rule of clarity under the principle ofnulla poena sine legeand infringe on the suffrage related to the exercise of the power to amend the Constitution, the freedom of expression, the freedom of assembly and demonstration, the doctrine of arrest by warrants, personal liberty, and academic freedom for the same reasons as presented in relation to Emergency Decree Nos. 1 and 2.

C. Significance of the Decision and Aftermath of the Case

The media generally supported this decision (the Kyunghyang Shinmun, the Chosun Ilbo, the Joongang Ilbo, the Hankyoreh, etc., March 23, 2013). Emergency Decrees were a representative vocabulary that stood for harsh and repressive measures against human rights as a means to maintain the authoritarian regime in our modern history. At the time the Emergency Decrees were in operation, constitutional principles, such as the people’s political freedom, personal liberty and the doctrine of arrest by warrant, were not respected. The scars of those who had to undergo political repression and suffering under the Emergency Decrees are still present today. Thus, it can be said that this decision helped heal the pain and suffering of those who contributed to the democratization of our society by going against the Emergency Decrees under the authoritarian regime.

Meanwhile, the issue of state compensation for the victims of the Emergency Decrees again surfaced. Thereupon, the court ruled that the liability of state

compensation was not established because public officials’ acts of executing the Emergency Decrees had been carried out before the unconstitutionality thereof was revealed, the extinctive prescription of claims arising from the cruel acts in the investigation process had already been completed, and the issuance of Emergency Decrees by the President had been an act of the state, exempt from the liability of state compensation. Subsequent to this ruling, dozens of constitutional complaints were filed against the constitutionality of this decision.

After this decision, the Supreme Court held Emergency Decree Nos. 4 and 9 unconstitutional; that is, it declared in the 2011ChoGi689 Decision of April 18, 2013, that Emergency Decree No. 9 is unconstitutional and invalid for the same reasons as presented in relation to Emergency Decree No. 1, and in the 2011Do2631 Decision of May 16, 2013, that Emergency Decree No. 4 is unconstitutional and invalid.

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