[2] The case holding that there exists a ground for retrial under Article 420 subparagraph 5 of the Criminal Procedure Act in a judgment subject to a retrial since the Presidential Emergency Measure No. 9 was judged to be unconstitutional and invalid from the beginning, in a case where the re-appellant requested a retrial on the charges of violation of the Presidential Emergency Measure No. 9 of the Re-Appellant's Emergency Decree No. 9, and thereafter the re-appellant requested a retrial on the above judgment

[2] In a case where the judgment for a retrial was finalized against the charge of violation of the Presidential Emergency Decree for National Security and Protection of Public Order (hereinafter “Emergency Decree No. 9”), and the Re-Appellant filed a petition for a retrial against the above judgment, the case holding that the court below erred by misapprehending the legal principles in holding that the above petition for retrial was unlawful on the ground that, as long as the Emergency Decree No. 9 was determined to be unconstitutional and invalid from the beginning of April 18, 2013 in the Supreme Court en banc Order 201Hu689 Decided April 18, 2013, since there was a new evidence to acknowledge innocence against the person who was sentenced to a crime, it constitutes “when there is a new evidence to acknowledge innocence” under Article 420 subparag. 5 of the Criminal Procedure Act.

1. Article 420 Subparag. 5 of the Criminal Procedure Act provides, one of the grounds for retrial, “When clear evidence to acknowledge a crime less than that recognized by the original judgment is newly discovered for a person who has been sentenced to a crime of oil, not guilty or acquittal, or for a person who has been sentenced to a punishment, exemption from punishment or acquittal,” and

Here, "when evidence is newly discovered" to acknowledge innocence, etc. means evidence that was not discovered or could not be submitted even if it was discovered in the final judgment procedure subject to review, which was newly discovered or could not be submitted (see Supreme Court en banc Order 2005Mo472, Jul. 16, 2009, etc.). It also constitutes a case where the penal law was in violation of the Constitution and the court declares that it is unconstitutional or invalid.

2. According to the records, the re-appellant was prosecuted for the Yong-gu Seoul District Court for the charge of violating Emergency Decree No. 9 by preparing for the production of printed articles containing the contents of slandering Emergency Decree No. 9 during the period from November 14, 1977 to the 16th day of the same month. The re-appellant, who was the first instance court, was convicted of imprisonment on December 16, 1978 and suspension of qualifications for 1 year and 6 years and 2 years of suspension of qualifications for the first instance court (Seoul High Court Decision 79No154), and the appellate court (Seoul High Court Decision 79No154) reversed the first instance judgment on May 4, 1979 and sentenced one year of suspension of qualifications. The Re-appellant appealed appealed appealed appealed appealed on July 24, 1979, but the Supreme Court rendered a judgment dismissing the appeal on June 16, 2009, and even if it was obviously obvious that the request for retrial was dismissed as a ground for retrial.

However, the Presidential Emergency Decree for the protection of national security and public order (hereinafter “Emergency Decree No. 9”) issued based on the Emergency Decree stipulated in Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “former Constitution”) violates the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without meeting the requirements for its issuance, and thus, prior to the cancellation or invalidation of Emergency Decree No. 9, it is unconstitutional and invalid as it is in violation of the U.S. Constitution, and further, in light of the current Constitution that has the provision for guaranteeing fundamental rights infringed by Emergency Decree No. 9, it is apparent that the Constitution is unconstitutional and void (see Supreme Court en banc Order 2011Hu689, Apr. 18, 2013).

As seen earlier, it is clear that the facts charged in the judgment subject to a retrial against the re-appellant were governed by the Emergency Decree No. 9, and since Emergency Decree No. 9 was determined to be unconstitutional and invalid from the beginning in the above Supreme Court en banc Order 2011 initially, early 689, this constitutes “when clear evidence to acknowledge innocence against the person who was sentenced to a crime of oil is newly discovered” and ultimately, there is a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the instant petition for retrial was unlawful as it violates the legal form. In so doing, it erred by misapprehending the legal doctrine on the grounds for retrial under Article 420 subparag. 5 of the Criminal Procedure Act, thereby adversely affecting the conclusion of the judgment. The grounds for reappeal assigning this error

3. Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee In-bok (Presiding Justice)