대통령긴급조치제9호위반
The judgment of the court below is reversed.
The defendant is not guilty. The summary of the judgment against the defendant shall be published.
1. The following facts are acknowledged according to the progress records of the instant case.
A. The Defendant was indicted as the facts charged as shown in the Attachment Nos. 1 and 2 (Seoul Criminal Court 75 Gohap 946). On February 16, 1976, the Seoul Criminal Court convicted the Defendant of all the above facts charged, and sentenced the Defendant to one year and six months of imprisonment and one year and six months of suspension of qualifications, by applying Articles 7 and 1(a) of the Presidential Emergency Decree for the protection of national security and public order (the Presidential Emergency Decree No. 9, May 13, 1975; hereinafter “Emergency Decree No. 9”).
B. The judgment of the court below was reversed on the ground that the defendant and the prosecutor appealed against the above judgment (Seoul High Court 76No. 662), and the Seoul High Court found all the charges guilty on July 29, 1976, and the sentence against the defendant is too heavy, and the defendant was reversed and sentenced to one year of imprisonment and one year of suspension of qualification (hereinafter “the judgment subject to a retrial”).
On August 2, 1976, the above judgment subject to a retrial became final and conclusive by the defendant's objection and withdrawal of a final appeal.
(d)
On November 23, 2017, a prosecutor requested a retrial on November 23, 2017, and this court rendered a decision to commence a retrial on March 15, 2018 on the ground that there was a reason for re-examination under Article 420 subparagraph 5 of the Criminal Procedure Act in the judgment subject to a retrial.
The decision to commence the above review was finalized as it is, because there was no legitimate filing of appeal within the appeal period.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
A. The former Constitution of the Republic of Korea (wholly amended on October 27, 1980 by the Constitution No. 9 of the Republic of Korea prior to the amendment of the Emergency Decree No. 9 on October 27, 1980)
The Presidential Emergency Decree for the National Security and the Protection of Public Order (hereinafter “Emergency Decree No. 9”) issued pursuant to Article 53 of the Act (hereinafter “the Act”) violates the fundamental rights of the people guaranteed by the Constitution by exceeding the bounds of the purpose without satisfying the requirements.