Article 151(1) of the former Criminal Act (wholly amended by Act No. 2746, Mar. 25, 1975) which is the applicable provisions of the instant judgment subject to a retrial includes a person suspected of committing a crime and subject to investigation. The Nonparty was a person suspected of violating the Presidential Emergency Measure (hereinafter “Emergency Measure No. 9”) for the protection of national security and public order at the time, and was under investigation. Thus, the act of hiding the Nonparty by the applicant for a retrial constitutes a crime of concealment of the offense. After the Emergency Measure No. 9 was rendered pursuant to the Supreme Court en banc Order that the said Emergency Measure No. 9 is unconstitutional and void, it does not affect the establishment of the crime of concealment of the offense, but does not constitute grounds for retrial under Article 420 subparag. 5 of the Criminal Procedure Act.

2. Determination

(a) unconstitutionality and invalidity of Emergency Measure No. 9

The Supreme Court en banc Order 201Hu689 Decided April 18, 2013 determined that the Emergency Decree No. 9 issued based on Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “former Constitution”) infringes on the fundamental rights of the people guaranteed by the Constitution by failing to meet the requirements for triggering the Emergency Decree and by excessively restricting the freedom and rights of the people beyond the limits for the purpose of its purpose. Thus, the Emergency Decree No. 9 is unconstitutional and invalid as it violates the new Constitution before the Emergency Decree No. 9 was cancelled or invalidated, and further, it is unconstitutional and invalid in light of the current Constitution that has the provision on guaranteeing fundamental rights infringed by Emergency Decree No. 9.

B. Whether the crime of harboring an offender is established

The crime of harboring an offender under Article 151(1) of the Criminal Act is established when the “person who commits a crime corresponding to a fine or heavier punishment” is concealed or escaped. The “person who commits a crime” includes a person who is subject to an investigation under the charge of a crime (Supreme Court Decision 2003Do4533, Dec. 12, 2003). However, since the first violation of subparagraph 9 of the Emergency Decree, which was unconstitutional and invalid, is not a crime, since the act of harboring an offender, is not a crime, even if the person was subject to investigation under the charge of a violation of subparagraph 9 of the Emergency Decree, the non-party does not constitute “criminal” under Article 151(1) of the Criminal Act. Accordingly, the non-party cannot be punished as a crime of hiding the non-party.

C. Existence of grounds for retrial under Article 420 subparag. 5 of the Criminal Procedure Act

Article 420 Subparag. 5 of the Criminal Procedure Act provides that "when clear evidence to acknowledge innocence, etc. is newly discovered for a person who has been pronounced guilty of a crime" is not found in the file of a lawsuit in a final and conclusive judgment subject to review, or even if it was discovered or could not be submitted, the new evidence is found or could not be newly discovered, or submitted. It also constitutes a case where a penal law violates the Constitution from the beginning to the beginning, and the court declares that the punishment law is unconstitutional and void (Supreme Court Order 2010Mo363 Decided April 18, 2013). This constitutes not only the case where a law directly based on the crime committed by a person who has been pronounced guilty is declared unconstitutional and void from the beginning to the beginning, but also the case where a law that is a premise for the establishment of the crime is declared

The crime of the instant judgment subject to a retrial was concealed by the Nonparty, who violated Article 420 subparag. 5 of the Criminal Procedure Act, and the Emergency Decree No. 9, which was convicted of violating Article 420 subparag. 5 of the Emergency Decree, constitutes a case where the non-party was found guilty of violation of Article 9 of the Emergency Decree from the beginning to the effect that it constitutes a crime through a retrial procedure, and thus, it constitutes a case where the judgment of innocence became final and conclusive, which constitutes “when clear evidence to acknowledge innocence of the person who was sentenced to a crime of oil”. Accordingly, the judgment subject to a retrial has grounds for retrial

Therefore, the lower court’s decision on commencing the instant retrial is justifiable.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 414 (1) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-tae (Presiding Judge)