대통령긴급조치제9호위반
The judgment of the court below is reversed.
The defendant shall be innocent.
1. The following facts are acknowledged according to the progress records of the instant case.
A. On October 31, 1975, the Defendant was indicted as Seoul Criminal Court 75 Gohap 438 on the charges stated in the separate sheet. On October 31, 1975, the same court found the Defendant guilty of the above charges, and sentenced the Defendant to one year imprisonment and suspension of qualification for the purpose of protecting national security and public order (hereinafter “Emergency Measure No. 9”) by applying Articles 7 and 1(c).
B. Accordingly, the Defendant appealed against the above judgment on the grounds of misunderstanding of facts, misunderstanding of legal principles, and misunderstanding of sentencing, and unfair sentencing. On February 3, 1976, the same court reversed the judgment of the court below on the grounds that the lower court’s punishment is too heavy, and again sentenced the Defendant to a suspended sentence of two years and suspension of qualifications for one year by applying Articles 9, 7, and 1(c) of the Emergency Measures Act, and sentenced the Defendant to a suspended sentence of two years and suspension of qualifications for one year (hereinafter “the judgment subject to a retrial”).
After that, with the lapse of the period of appeal, the judgment subject to a retrial became final and conclusive on February 11, 1976.
(d)
On November 22, 2017, a prosecutor filed a request for a retrial, and this court rendered a decision to commence a retrial on June 1, 2018 on the grounds that there are grounds for a retrial under Article 420 subparag. 5 of the Criminal Procedure Act in the judgment subject to a retrial, and the said decision became final and conclusive as it is.
2. We examine ex officio prior to 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 of the Republic of Korea)
The Emergency Measure No. 9, which was issued on the basis of the Emergency Measure stipulated in Article 53 of the Act, violates the fundamental rights of the people guaranteed by the Constitution by exceeding the bounds of the purpose without satisfying the requirements of the Emergency Measure, and by excessively restricting the freedom and rights of the people. Thus, prior to the cancellation or invalidation of Emergency Measure No. 9, it is unconstitutional and invalid as it is in violation of the Act.