Attorney D, E, F, G

According to the records, the following facts are recognized.

A. The Defendant was indicted for violating the Presidential Emergency Measures (Presidential Emergency Measures No. 9, 1975, 5, 13, 13, hereinafter referred to as “Emergency Measures No. 9”) for the national security and protection of public order. The Defendant was convicted of all the charges against the Defendant on September 17, 1976 and sentenced the Defendant to two years of imprisonment and suspension of qualification.

B. On February 24, 1977, the Defendant and the prosecutor appealed to the above judgment as the Gwangju High Court 76No542, and the above court found the Defendant guilty of the crime, and sentenced the Defendant to one year and six months of imprisonment and one year and six months of suspension of qualification (hereinafter referred to as “instant judgment subject to a retrial”), and the judgment on the retrial of this case became final and conclusive as is. Meanwhile, the Defendant asserted that the Emergency Decree No. 9 is unconstitutional, and the cause for a retrial exists in the judgment subject to a retrial. On the other hand, the Defendant asserted that the judgment subject to a retrial is unconstitutional. On March 5, 2014, the instant judgment rendered a request for a retrial of this case. Accordingly, on March 9, 2014, the lower court determined that there were grounds for a retrial as stipulated in Article 420 subparag. 5 of the Criminal Procedure Act and Article 47(3) of the Constitutional Court Act, and the decision on

2. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

In addition, the Defendant did not perform the same act as the facts charged, and the court below erred by misapprehending the legal principles as to Emergency Measure No. 9.

2) Unreasonable sentencing

The sentence of the court below is too unreasonable.

(b) Prosecutors;

For the benefit of the defendant, the appeal was filed.

3. Determination

A. We examine ex officio whether Emergency Measure No. 9 is unconstitutional prior to the judgment on the grounds for appeal by the Defendant and the prosecutor.

The statutes to be applied to facts constituting an offense in a case for which a new trial has commenced are the laws at the time of a new trial. Therefore, where the statutes were modified at the time of the judgment on new trial, the court shall apply the statutes at the time of the judgment on new trial to the facts constituting the offense, and in principle, shall apply Article 326 subparag. 4 of the Criminal Procedure Act to the prosecution on acquittal of the facts constituting the offense in a case for which the said statutes were repealed. However, even if the penal statutes were repealed at the time of the judgment on new trial, if the phrase "a abolition" was against the Constitution and has no effect since it was in violation of the Constitution, the term "when it was not a crime" under the former part of Article 325 of the Criminal Procedure Act, and shall not be deemed to constitute a cause for acquittal under Article 326 subparag. 4

However, Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980, 200; hereinafter “former Constitution”) provides that “The Emergency Decree No. 9 issued based on the Emergency Decree No. 53 of the Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 2013; hereinafter “former Constitution”) violates the fundamental rights 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. Therefore, even before the Emergency Decree No. 9 was cancelled or invalidated, it is unconstitutional and void as it is in violation of the decent Constitution, and further, it is clearly found that it is unconstitutional and void (see, e.g., Constitutional Court Order 2010Hun-Ba70, 132,170 (Joint) and Supreme Court en banc Decision 2011Hun-Ba689, Apr. 18, 2013).

4. Conclusion

The judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant and the prosecutor, and it is again decided as follows.

The summary of the facts charged of this case is as shown in the separate sheet, and since the facts charged did not constitute a crime, it is so decided as per Disposition by the assent of all participating Justices on the bench under the former part of Article 325 of the Criminal Procedure Act.

Judges Ginsung defect

Judge Park Jong-soo