1. As to the violation of the Presidential Emergency Measures

A. In a case where the abolished penal law becomes retroactively null and void due to the Constitutional Court’s decision of unconstitutionality, or the court declares that the statute on the effect of the repealed penal law becomes null and void retroactively due to the Constitutional Court’s decision of unconstitutionality, a prosecuted case against which a public prosecution was instituted by applying the pertinent statute shall be acquitted pursuant

Furthermore, in the case where a new trial was commenced, the penal law was repealed at the time of the new trial.

Even if the abolition was about the law that was in violation of the Constitution and has no effect, it constitutes a cause of innocence as provided in the former part of Article 325 of the Criminal Procedure Act, and it does not constitute a cause of acquittal as provided in subparagraph 4 of Article 326 of the Criminal Procedure Act.

(See Supreme Court en banc Decision 2010Do5986 Decided December 16, 2010). Therefore, in the instant case where a new trial has commenced after a conviction was rendered for a violation of subparagraphs 1 and 4 of the Presidential Emergency Measures (hereinafter “Emergency Measures”) under Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “Personal Constitution”), the first determination of whether subparagraphs 1 and 4 of the Emergency Measures are in violation of the Constitution should be made, even if the statutes that are applicable to the facts charged have already been rescinded at the time of a new trial, even if the said statutes were abolished at the time of a new trial, whether subparagraphs 1 and 4

However, with respect to Emergency Measure No. 1, Supreme Court en banc Decision 2010Do5986 Decided December 16, 2010, which held that the Emergency Measure No. 1 is unconstitutional, and there are no other circumstances to determine otherwise in this case, the following is examined as to the unconstitutionality of Emergency Measure No. 4.

B. Whether Emergency Measure No. 4 is unconstitutional or not (1) a serious crisis occurs that makes it impossible to cope with the method of exercising power according to the constitutional order at ordinary times.