Violations

Attorney in charge C

On April 28, 1978, the Defendant was admitted to the social department of D University and was enrolled in the fourth year of the same university department. On April 28, 1978, the Defendant was willing to conduct a demonstration demanding the abolition of the current constitution and the cancellation of emergency measures in collusion with E, E, who was enrolled in the fourth year of the same university department at the Nam-gu Seoul Special Metropolitan City (Seoul), E, who was enrolled in the fourth year of the same university economics and the fourth year of college economics, and F, who was enrolled in the fourth year of the same university.

A. On May 178, 1978, from around 17:00 to 16:00 of the following day, HFG 8 located in Ansan-si G using fraud, iron plates, iron sheets, etc. prepared in advance, source of use, pits, etc. in the democratic economy, the main text describes 7 claims, such as the removal of the new constitution and the removal of emergency measures, which describe 4 paragraphs, such as the removal of the presidential election, and the removal of the emergency measures, against the Constitution of the Republic of Korea, and openly slanders the contents against the Constitution of the Republic of Korea and the emergency measures;

B. At around 12:30 of the same month, in front of the same university library, the Defendant et al. collected more than 2,00 students in the same university by inciting the Defendant et al., and distributed expressions of such contents as the act of openly slandering the Republic of Korea’s constitutional abolition and slandering the emergency measures by taking out relief such as “the removal of a new constitution”, “the removal of a new emergency measure”, and “the removal of a new constitution”.

2. Case progress

According to the records of this case, on January 26, 1979, the court below found the defendant guilty of the above charges, and sentenced the defendant to two years of imprisonment and suspension of qualification for a violation of the Presidential Emergency Decree No. 9 (hereinafter referred to as "the judgment on review"), and recognized that the judgment on review becomes final and conclusive due to the waiver of the defendant's appeal.

3. Determination

A. Provisions of applicable provisions of the judgment subject to review

As to each of the above facts charged, the judgment subject to a retrial was enacted by the Presidential Emergency Decree No. 9 on May 13, 1975 (the Presidential Emergency Decree No. 67 on December 7, 1979; hereinafter referred to as the "Emergency Decree No. 9") on the basis of the Emergency Decree No. 53 of the Constitution of the Republic of Korea (wholly amended by the Constitution No. 9 on October 27, 1980; hereinafter referred to as the "former Constitution") and the Presidential Emergency Decree No. 7, No. 1(b) through (d), 7, and 2 were applied to each of the above facts charged.

B. unconstitutionality of Emergency Measure No. 9

1) The State’s emergency power should be exercised within the minimum limit that is essential to remove the direct cause of the crisis when the State is in a serious crisis, and must conform to the requirements and limitations for the issuance of the Constitution that provides for the state’s emergency power. In Article 53(1) and (2) of the 198 Constitution of the Republic of Korea, it is limited to a state’s emergency power to overcome it when there is “necessary to take prompt action” when there is a natural disaster or serious financial or economic crisis, or when there is a serious threat or risk of national security, national security, or public peace and order.

2) However, it is clear that the contents of Emergency Measure No. 9 are to completely prohibit the discussion of the new constitution or to suppress people's resistance against so-called physical materials, and it does not exceed the limit for the purpose of Emergency Measure Authority, and it does not constitute a situation where the domestic and foreign political situation and social situation at the time of the issuance of Emergency Measure No. 9 are subject to the issuance of Emergency Measure No. 9, which may have a serious threat to the national critical crisis or national security. Thus, Emergency Measure No. 9 issued in such domestic and foreign political situation and social situation lack the requirements per se stipulated in Article 53 of the United States Constitution.

3) In addition, the contents of Emergency Decree No. 9 restrict the freedom of expression as stipulated in Article 18 of the Postal Constitution (Article 21 of the current Constitution) so that the State can guarantee the fundamental human rights of the people as much as possible, and restrict the freedom of body as stipulated in Article 10 of the Postal Constitution (Article 12 of the current Constitution) by denying the principle of a constitutional state through the full exclusion of warrant requirement through the full exclusion of the principle of a constitutional state, as well as the right to petition under Article 14 of the Postal Constitution (Article 16 of the current Constitution). Furthermore, Article 23 (Article 26 of the current Constitution) of the Postal Constitution (Article 9 of the current Constitution), which restricts the right to petition by explicitly prohibiting any unauthorized student from denying or filing a petition for abolition, and Article 23 (Article 26 of the current Constitution) of the Postal Constitution (Article 9 of the current Constitution).

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 of exercising the requirements, prior to the cancellation or invalidation of Emergency Measure No. 9, it is unconstitutional and invalid due to its violation of the decent Constitution. Furthermore, in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Measure No. 9, it shall be deemed unconstitutional and invalid (see, e.g., Supreme Court en banc Order 2011Hun-Ba70, 132, and 170, Apr. 18, 2013; Constitutional Court en banc Order 2010Hun-Ba70, 132, and 170 (Joint).

(c) Measures to be taken by the court where the repealed or invalidated penal 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 a public prosecution has been invalidated by the application of the pertinent law, the accused case shall be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act. Furthermore, even if the penal law was repealed at the time of a new judgment, if the ‘dispeachment' was concerning the law that has no effect since it was in violation of the Constitution from the beginning, it constitutes a cause of innocence under the former part of Article 325 of the Criminal Procedure Act, and it does not constitute a cause of acquittal under Article 326 subparagraph 4 of the Criminal Procedure Act (Supreme Court en banc Decision 2010Do5986 Decided December 16, 2010)

4. Conclusion

Therefore, each of the facts charged of this case constitutes "the case where the defendant's case is not a crime since unconstitutional or invalid because of the Emergency Decree Nos. 9-7, 1 (b) through (d), 7 and 2, which are applicable laws and regulations, constitutes "the case where the defendant's case is not a crime", and thus, it is decided as per Disposition by the decision of not guilty against the

Judges Yang Sung-tae

Judges Shin Young-ju