Residence Daejeon: Not more than the Daejeon Embio-gu

Reference domicile Daejeon: Omission

Attorney Lee Young-chul in charge

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

The Defendant is a person who is enrolled in the third year in the precise course of a university in Chungcheongnam-Namnam University.

A) On June 7, 1975, at around 20:30 on June 20, 1975, the Defendant heard that, at the Defendant’s house located in Daejeon High University, the Defendant’s office of the Defendant, ○○○○, the president of the said department, intended to hold a national precise machinery sports competition from the said department, in Seoul, was postponed, and distorted the facts that, in the event that the sports competition was postponed, it was impossible to hold a national precise machinery sports competition from the literature delivery censorship, the Defendant’s office distorted the fact that: (a) around 22:30 on June 9, 1975, the Defendant’s letter sent to the above Defendant’s office “(i) was scheduled to have a sports competition at the Hong High University located in Busan at 6 hours at the above Defendant’s office, but was dissolved from the literature delivery censorship; (b) on the present date, the Defendant’s office became aware of the newspaper report, Seoul, and tried to monitor the students’ attempt to send it to the president’s office.”

2) Specific details of the applicable statutes on the facts charged of this case are as follows.

1. Presidential emergency measures for national safety and the protection of public order (amended by Presidential Emergency Decree No. 9 on May 13, 1975 and released by Presidential Notice No. 67 on December 7, 1979; hereinafter referred to as "Presidential Emergency Measures No. 9") 1. The following acts shall be prohibited:

(a) Making or spreading a will or spreading a fact distorted;

7. A person who violates this measure or the measures of the competent Minister under this Act shall be punished by imprisonment for a limited term of not less than one year. In this case, suspension of qualifications for not more than ten years shall also be concurrently imposed. The same shall also apply to a person who has committed,

B. Case progress

On July 16, 1975, the Daejeon District Court convicted the Defendant of the facts charged in the instant case, and sentenced the Defendant for one year of imprisonment, suspension of qualifications for two years and suspension of execution for a violation of the Presidential Emergency Measure No. 9 (hereinafter referred to as the "Decision on Retrial"), and the said judgment became final and conclusive around that time.

2. 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 longer national emergency power which is exercised to ensure the existence of the nation should be respected. However, such a national emergency power must be exercised within the minimum necessary limit when the State is in a serious crisis, and must be in accordance with the requirements and limitation for exercising the constitutional power under Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980). 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 Oct. 27, 1980; hereinafter referred to as the “former Constitution”) shall not be an exception. In relation to the exercise of the emergency power under Article 53(1) and (2) of the former Constitution, it shall be limited to “when there is a natural disaster, serious financial or economic crisis, or serious threat or threat of public safety and order.”

2) However, the contents of the Emergency Measure No. 9 issued based on the Emergency Decree provide that “any act of publicly spreading or distorted facts by means of assembly, demonstration, newspaper, broadcasting, telecommunications, or other public utility strike means, petition, instigate or slandering the Constitution of the Republic of Korea, or claiming an amendment or abolition thereof by means of documents, drawings, sound records, etc.”, and that “any act of openly slandering the student’s assembly, demonstration or political participation, or other measures except for those conducted under the guidance or supervision of the school authorities” and “an act of openly excluding ordinary and non-political activities” are all prohibited from the issuance of the Emergency Measure No. 9 to the school or any other means of broadcasting, news, or others, or from the production, sale, possession, or display of representations of the contents thereof, and any person who violates the above provision shall be punished by imprisonment for a limited period of not less than one year, and any person who violates the above provision shall not be subject to suspension or non-compliance with the competent Minister’s authority at the time of the enforcement of the Emergency Measure at the time of the State.”

3) In addition, the contents of Emergency Measures 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 through completely eliminating 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 for a petition as stipulated in Article 23 (Article 26 of the current Constitution) of the current Constitution by explicitly prohibiting acts to deny or abolish the new Constitution. Moreover, Article 23 (Article 26 of the current Constitution) of the current Constitution is prohibited and prohibited, and Article 19 (Article 2 of the current Constitution) of the current Constitution provides that the current Constitution shall also restrict the freedom of students.

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, this is unconstitutional and invalid as it is in violation of the new Constitution, and furthermore, it is unconstitutional and invalid even 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,

(b) Measures to be taken by the court where the repealed or invalidated penal laws were unconstitutional or invalid from the beginning.

Meanwhile, in a case where a penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality or has been declared unconstitutional or invalid by the court, the court shall render a judgment of innocence pursuant to Article 325 of the Criminal Procedure Act with respect to the case in which a public prosecution was instituted by applying the pertinent law. Furthermore, even if the penal law was repealed, if the abolition was based on the first violation of the Constitution and became invalid, the Defendant’s case constitutes grounds for innocence (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010).

3. Conclusion

Therefore, since the facts charged in this case are unconstitutional and invalid since the Emergency Decree No. 9, the former and latter parts of Paragraph 7, and Paragraph 1(a), which are applicable laws and regulations, are unconstitutional and invalid from the beginning, the defendant's case is "when the defendant's case is not committed a crime", the defendant is acquitted under the former part of Article 325 of the Criminal Procedure Act, and the summary of the judgment

In addition, the fact that the defendant, who had experienced a big vision and studio due to the exercise of illegal or unjust governmental authority, which was committed in the past authoritative regime, was hicked to the fact that the defendant had been faced with the wrong past and restored honor, and that the new judgment of this case was an opportunity for restoration of his reputation and the suffering suffered from the date on which the defendant passed. Furthermore, the new judgment of this case was hicking the open history of this case, such as this case, and the trial division will play a role as the last resort for guaranteeing the fundamental rights of the people and realizing universal justice, so as not to cause such depression.

Judges Kim Gin-Un

Judges' records