[Defendant-Appellant]

The summary of the judgment of innocence against the accused shall be published.

A. Summary of the facts charged and applicable statutes

1) Summary of the facts charged

On December 28, 1977, the Defendant was sentenced to imprisonment with prison labor and suspension of qualifications for a violation of the Presidential Emergency Decree No. 9 at Seoul High Court at Seoul High Court on March 14, 1978, but the appeal was finalized by the Supreme Court on March 14, 1978, and completed the execution of the sentence on November 5 of the same year.

A) On April 19, 1978: around 40, 06: 40 so that approximately 10 persons, including the Defendant’s change ○, ○○, ○○, Red○, 00, ○○○, and △△△△, located in the same room in the Dong-dong Seoul, Seodaemun-gu, Seoul, Seoul, and approximately 16 persons can hear at around 3 to 4 times in a large sound, namely, “Irreg of his political right, the abolition of the new constitution.” Then, approximately 50 persons going into the above changing room and going to the outside of the kitchen in preparation for cooking, “Irgrgrg of his new constitution, and so on” 2 to 3 times in a large voice, namely, “Irgrgrg of his political right,” and 2 to 3 times in a large sound.

B) On December 27, 1978: 07: 15, the Defendant’s long-term head of Chungcheongnam-gun, Chungcheongnam-gun, Sari-gun, Sari-si, Sari-si, Sari-si, Sari-si, Sari-si, where the Defendant was admitted, install a corridor-side window at 16th to the outside and to the outside and to the outside of the corridor 40 children, who were confined in the same company, and the correctional officers are able to hear. The phrase “Irri-si, Sari-do, Ir., Irri-do, Irri-do, Irri-do, Irri-do,” means 15 times the relief.

(C) 11:45 square meters in the same manner in the same manner at the same time, and 5 others in the same manner;

As a way of each demonstration, the abolition of the Korean Constitution is asserted.

2) Applicable legislation

The specific contents of the statutes applicable to the facts charged of this case are as follows.

Emergency measures for national security and the protection of public order (the Presidential Emergency Measures No. 9, May 13, 1975, which was enacted by the Presidential Emergency Measures No. 67, December 7, 1979; hereinafter referred to as "Presidential Emergency Measures No. 9") 1. The following acts are prohibited:

(b) An act of denying, opposing, or slandering the Constitution of the Republic of Korea, or an act of filing a petition, instigating, or disturbing an amendment or abolition thereof, by resorting to expressions, such as means of public utility, such as assemblies, demonstrations, newspapers, broadcasting, and communications, or by filing a petition for an amendment or abolition thereof;

7. Any person who violates this measure or the measures of the competent Minister under this Act shall be punished by imprisonment for a definite term of not less than one year.

In such cases, suspension of qualifications for not more than ten years shall be concurrently imposed. A person who has committed such attempted crimes, or who has prepared or conspired to do so.

same shall also apply.

B. Case progress

On April 20, 1979, the Daejeon District Court found the Defendant guilty of the facts charged in the instant case, and sentenced the Defendant to one year and six months of imprisonment and one year of imprisonment for a violation of the Presidential Emergency Decree No. 9 (hereinafter referred to as the "subject case of retrial"), and the Defendant withdrawn the appeal on August 13, 1979.

2. Determination

A. unconstitutionality of Emergency Measure No. 9

1) The President’s decision on the national tensiond power, which is exercised to ensure the existence of the State, should be respected when a serious crisis occurs by means of exercising power pursuant to the constitutional order at ordinary times. However, such a national emergency power should be exercised within the minimum necessary extent to eliminate the direct cause of the crisis when the State is in a serious crisis, and must comply with the requirements and limitations for exercising the constitutional power under Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980), and in this respect, the emergency power under Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of the Constitution of the Republic of Korea on Oct. 27, 1980; hereinafter referred to as the “former Constitution”) cannot be an exception. In relation to the exercise of the emergency power under Article 53(1) and (2) of the former Constitution, the exercise of the emergency power requires restriction or threat to public safety and order.

2) However, the contents of the Emergency Decree No. 9 are as follows: “Any act of publicly spreading facts by means of assembly, demonstration or newspaper, broadcasting, telecommunications, or representations, or by assertion, petition, drawing, or publicity of the Constitution of the Republic of Korea, other than by the instruction and supervision of the school authorities, or by filing a prior permission of the principal of the school or other ordinary political activities,” and “any act of openly harming the student’s assembly, demonstration or political activities” and “any act of openly spreading the contents of the Emergency Decree No. 9 by means of broadcast, demonstration or newspaper, broadcast, telecommunications, etc.” and “any person who violates the provisions of the Emergency Decree No. 1 of this Chapter shall be prohibited from publicly spreading the contents of the Emergency Decree by means of broadcast, news, or other means, or from spreading, distributing, selling, or displaying, any representations of the contents of the Emergency Decree at the time of such violation, and any person who violates the provisions of the Emergency Decree No. 1 of this Chapter shall be prohibited from publicly spreading the contents of the Emergency Decree.

3) In addition, the contents of Emergency Measures No. 9 are seriously restricting the freedom of expression or the freedom of new body and the right to petition guaranteed by the Constitution, which is an essential element of democracy. Notwithstanding the provisions of Article 8 (Article 10) of the 18 (Article 21 of the 10) of the 1999 Constitution, it limits the freedom of expression as stipulated in Article 10 (Article 12) of the 10 of the 1999 Constitution by denying the principle of the rule of law by completely excluding the warrant requirement, and the restriction on the freedom of residence as stipulated in Article 14 (Article 16) of the 199 of the 1999 Constitution, which restricts the freedom of expression and the right to petition that is guaranteed by the Constitution. Article 23 (Article 26) of the 26) of the 1999 of the 1999 Constitution, which restricts the student's right to petition to temporarily close the school, and Article 23 (Article 9) of the 19) of the 2) of the 19 of the 19.

4) As such, Subparag. 9 of the Emergency Decree infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people, without satisfying the requirements for triggering the Emergency Decree, even before the Emergency Decree No. 9 was rescinded or invalidated, it is unconstitutional and invalid as it is in violation of the new Constitution, and further, it is unconstitutional and invalid in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Decree No. 9 (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013).

(b) Measures to be taken by the court where the repealed or invalidated penal-related Acts and subordinate statutes are invalidated as unconstitutional from the beginning.

Meanwhile, in a case where the penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared that a public prosecution was null and void, the court shall render a judgment of innocence in accordance with Article 325 of the Criminal Procedure Act with respect to the case where the pertinent law has been instituted by applying the pertinent law. Furthermore, even if the penal law was repealed, if the “a abolition” was against the law which has no effect due to a violation of the Constitution from the beginning, the defendant’s case constitutes grounds for innocence under the former part of Article 325 of the Criminal Procedure Act (see Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010, etc.).

3. Conclusion

Therefore, the facts charged of this case are unconstitutional and invalid since the Emergency Decree No. 9 (7) (former and latter parts) and Paragraph 1 (b) (which are applicable laws and regulations, are unconstitutional and invalid from the beginning, and thus, it constitutes “when the defendant's case is not committed a crime.” Thus, the defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence against the defendant pursuant to Article 440 of the

In addition, the fact that the defendant, who was self-satisfed by the past authoritative regime, was faced with a large satisfy in the past due to the exercise of illegal and unjust governmental power, was hicking and turning on the wrong past and the defendant's honor at the time of restoring honor, and the defendant was trying to be an opportunity for restoring honor as well as for the pain that the defendant had experienced on the date when the ruling of this case was passed by the date when the ruling of this case was rendered by the defendant. Furthermore, it is true that the open history of this case, like this case, has taught the open history, and the full bench, will play the role of guaranteeing the people's right to the press and realizing universal justice.

Pakistan Kim Jong-young

Judges' records