The Defendant, as the Vice-Chairperson of Zone IV, is the E:

A. From Mar. 10, 1979 to Mar. 13:30, 16:00, Gngue 106, Gngue 2nd 106, Gngue in Sacheon City F, who denied the Constitution of the Republic of Korea from H, and slanders the Presidential Emergency Measure No. 9, until they have returned home, after being issued one copy of the definial declaration;

B. At around 12:30 on March 27, 1979, the Defendant conspiredd to conduct a regional organization of a “K organization” that supports the text of the declarations described in I, J, and B, and subsequently publicly disseminated the content that denies the Constitution of the Republic of Korea and slanders the Presidential Emergency Decree No. 9 by explaining the origin of Q and the purport of the organization among the gatherings of I, J. L, M, N,O, P, etc. at the 106 room of the second floor of the said Gn-ro 2, G, and I, J. L, M, N,O, P, etc.

2. Case progress

(a) Declaration and final judgment of conviction of the defendant;

On September 3, 1979, the Gwangju District Court rendered a guilty verdict on all charges by applying the Presidential Emergency Decree No. 9, and sentenced two years of imprisonment, three years of suspended execution, and two years of suspension of qualification (hereinafter referred to as "the judgment on review") to the defendant, and the judgment subject to review was finalized on September 11, 1979.

B. Details of Presidential Emergency Measure No. 9

In the judgment subject to a retrial, Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the "former Constitution") applied the Presidential Emergency Decree for the protection of national security and public order (amended by Presidential Emergency Decree No. 9 of May 13, 1975; hereinafter referred to as the "Emergency Decree No. 9") to each of the above facts charged, and the specific contents are as follows.

1.The following acts shall be prohibited. (b) An act of denying, opposing, dysing, or slandering, or causing the amendment or abolition thereof, by means of public radio waves, such as assemblies, demonstrations, newspapers, broadcasting, broadcasting, and telecommunications, documents, pictures, and sound records, or by an act of openly slandering the Constitution of the Republic of Korea; 2. an act of openly disseminating, by means of broadcast, news, or other means, contents in violation of paragraph 1, or an act of openly distributing, distributing, selling, possessing, or displaying, the contents thereof; 7. A person who violates this measure or a measure taken by the competent Minister under such a measure shall be punished by imprisonment for a limited term of not less than one year. In this case, suspension of qualifications shall be concurrently imposed. The same shall also apply to a person who prepares or conspires for,

3. Determination

A. unconstitutionality of Emergency Measure No. 9

1) In the event of a serious crisis that is unable to be dealt with by the method of exercising power in accordance with the constitutional order at ordinary times, the Presidential decision on the national emergency power which is exercised to ensure the existence of the nation should be respected. However, the national emergency power should be exercised within the minimum limit that is essential to remove the direct cause of the crisis when the state is faced with a serious crisis, and must comply with the requirements and limits for exercising the constitutional power that provides for the national emergency power, and in this respect, the emergency power provided for in Article 53 of the new Constitution shall not be an exception. The new Constitution is limited to the emergency power to overcome the crisis when there is "natural, natural or significant financial or economic crisis, or when there is a serious threat or threat of national security or public peace and order."

2) However, the contents of the Emergency Decree No. 9 issued based on this are as follows: "act of openly spreading facts by means of broadcast, news, or other means; "act of denying, opposing, duplicating, or slandering the Constitution of the Republic of Korea by means of public utility means, such as assemblies, demonstrations or newspapers, broadcasting, drawings, music records, etc.; "act of asserting, petitioning, instigating, or publicizing the amendment or abolition thereof;" "act of openly harming the student's assembly, demonstration or political participation" and "act of openly excluding formal and non-political activities" with the instruction and supervision of the school authorities or with the prior permission of the head of the school; and "an act of openly harming the student's assembly, demonstration or political participation" and "an act of openly disseminating the contents thereof by means of broadcast or news, or producing, distributing, selling, possessing, or displaying materials thereof; a person who violates the above paragraph (2) shall be punished by imprisonment for not less than one year; a person who violates the above provision shall not be subject to any temporary or temporary emergency measure at the time of the competent Minister.

3) In addition, the contents of the Emergency Measure No. 9 are seriously restricting the freedom of expression or the right to petition guaranteed by the Constitution, which is an essential element of democracy, so that the State may guarantee to the maximum extent fundamental human rights of the people, notwithstanding the provisions of Article 8 (Article 10 of the current Constitution), Article 18 (Article 21 of the current Constitution), which restricts the freedom of expression as stipulated in Article 10 (Article 12 of the current Constitution) of the current Constitution by denying the principle of the rule of law by completely removing the warrant requirement, and not only restrict the freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution) of the current Constitution, but also restrict the right to petition as stipulated in Article 23 (Article 26 of the current Constitution) of the current Constitution by explicitly denying the new Constitution or prohibiting the abolition thereof. Moreover, Article 23 (Article 26 of the current Constitution)9 of the current Constitution provides that all unauthorized assemblies or demonstrations of students and political activities, and Article 21 (Article 3) of the current Constitution provides that the current Constitution shall be restricted.

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 beyond the limits for the purpose without satisfying the requirements for triggering the Emergency Decree, prior to the cancellation or invalidation of Emergency Decree No. 9, it is unconstitutional and invalid due to its violation of the Act, 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 a repealed or invalidated criminal law is unconstitutional or invalid from the beginning.

In a case where the penal law has retroactively lost its effect due to the decision of unconstitutionality by the Constitutional Court, or the court has declared that the punishment has been unconstitutional or invalid, the court shall, pursuant to Article 325 of the Criminal Procedure Act, render a not-guilty verdict for the accused case against which a public prosecution was instituted by applying the pertinent law. Furthermore, even if the penal law was repealed, if the "depristion" was concerning the law that was not effective since it was in violation of the Constitution from the beginning, the defendant's case constitutes "when it was not a crime" under the former part of Article 325 of the Criminal Procedure Act, and it does not constitute "when it was not a crime" under Article 326 subparagraph 4 of the Criminal Procedure Act (see Supreme Court en banc Decision 2010Do59

4. Conclusion

Thus, the facts charged of this case constitute "where the defendant's case was not committed as a crime since the Emergency Measure No. 9, which is the applicable law, was unconstitutional or invalid since it was originally established," and thus, the defendant is acquitted pursuant to the former part of Article 325

Judges Cho Yong-hee

Judges Shin Young-ri