2011 Violation of Emergency Decree No. 9 of the Republic of Korea

1. The net A;

2. Net B;

3. C

1. Defendant A’s consent;

2. Defendant B’s person E

3. Defendant C.

Defendants and Prosecutor

Magazine (public trial)

Law Firm F (For the defendant)

Attorney G, H, I, and J

Gwangju High Court Decision 7746 delivered on April 2, 1977

Gwangju District Court Decision 76Gohap177 delivered on December 30, 1976

April 10, 2014

The lower judgment is reversed. The Defendants are not guilty.

1. Case history

According to the records, the following facts are recognized.

A. The Defendants were indicted on the charge of violating the Presidential Emergency Decree No. 9 of May 13, 1975 (the Presidential Emergency Decree No. 9 of May 13, 1975) (hereinafter “Emergency Decree No. 9”) for the protection of national security and public order, as stated in the summary of the charges charged. The said court convicted Defendants A and B of both the charges, and sentenced Defendant A and Defendant B of six years of imprisonment and suspension of qualification, five years of suspension and suspension of qualification, respectively.

B. On April 2, 197, the above court appealed the above judgment as the Gwangju High Court 77Do46, and on April 2, 197, the above court rejected the Defendants’ assertion of mistake of facts and misapprehension of legal principles, rejected the Defendants’ assertion of unfair sentencing and reversed the judgment, and sentenced Defendant A and Defendant B to four years of imprisonment and suspension of qualification, three years of imprisonment and suspension of qualification, and three years of suspension of qualification to Defendant C (hereinafter “instant judgment subject to a retrial”), and the final appeal was dismissed on July 26, 197, and the judgment subject to a retrial became final and conclusive as it is. Meanwhile, the Defendants asserted that there was grounds for a retrial in the judgment subject to a retrial was unconstitutional. On the other hand, the above judgment on retrial asserted that the Defendants were unconstitutional and unconstitutional, and the above judgment rendered the instant request for a retrial on March 5, 2014, and determined that there was a ground for a retrial as stipulated in Article 420 subparag. 5 of the Criminal Procedure Act.

2. Summary of grounds for appeal;

A. Defendants

1) Legal principles

In addition to the Emergency Decree No. 9, it is invalid in violation of the Constitution, and even if the defendants' act was legitimate act as a pastor, the judgment below erred by misapprehending the legal principles as to the legitimate act under Article 20 of the Criminal Act.

2) The assertion of unreasonable sentencing

The sentence of the court below is too unreasonable.

(b) Prosecutors;

The Defendants appealed for the benefit of the Defendants.

3. Determination

A. Whether Emergency Measure No. 9 is unconstitutional

In a case where a new trial commences, the statutes applicable to facts constituting an offense are the said statutes at the time of a new trial. Therefore, in a case where the said statutes were amended at the time of the judgment for new trial, the court shall apply the said criminal facts to the statutes at the time of the judgment for new trial, and in principle, shall apply Article 326 subparag. 4 of the Criminal Procedure Act in a case where the said statutes were repealed. However, even if the penal statutes were repealed at the time of the judgment for new trial, if the abolition was about the statutes that have no effect since they were in violation of the Constitution from the beginning, it constitutes a ground for innocence under the former part of Article 325 of the Criminal Procedure Act, and it does not constitute a ground for acquittal under Article 326 subparag. 4 of the Criminal Procedure Act (see Supreme Court en banc Decision 20

In the event of a serious crisis that is unable to cope 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 guarantee the existence of the State should be respected. However, such a national emergency power should be exercised within the minimum necessary limit when the State is in a serious crisis, and it must comply with the requirements and limits for exercising the national emergency power under Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the "former Constitution"). 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. Article 53(1) and (2) of the former Constitution provides that the exercise of the emergency power shall be limited to “natural, critical financial or economic crisis, or serious threat or threat to national security or public safety and order.”

However, the contents of the Emergency Measure No. 9 issued based on this issue are as follows: "act of publicly spreading facts by means of newspaper, demonstration or newspaper, communication, or public radio wave means, such as documents, drawings and records, etc.; "act of denying, opposing, instigating or disturbing the Constitution of the Republic of Korea;" "act of openly harming the student's assembly, demonstration or political participation, or other measures except for regular and non-political activities under the guidance and supervision of the school authorities;" "act of openly harming the student's assembly, demonstration or political participation, or other measures" (each subparagraph of paragraph (1)); and "an act of openly spreading the contents of such act by means of broadcasting, reporting or other means; an act of producing, distributing, distributing, possessing, or displaying material contents thereof; a person who violates the above paragraph (2) shall be punished by imprisonment for a limited period of not less than 1 year; a person who violates the above paragraph (1) or (7) shall not be subject to any temporary or temporary emergency measure of the competent Minister at the time of the issuance of such an order.

In addition, the contents of Emergency Decree 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 limits the freedom of expression, and 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 it limits the freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution) of the current Constitution. Further, Article 23 (Article 26 of the current Constitution) of the current Constitution is to restrict the right to petition by explicitly prohibiting acts to deny or abolish the new Constitution, and Article 23 (Article 9 of the current Constitution) of the current Constitution provides that all assemblies, demonstrationss, and political activities of unauthorized students are prohibited, and Article 21 (1) of the current Constitution provides that the competent Minister shall order the student's temporary closure of school and the school.

As such, subparagraph 9 of the Emergency Decree goes beyond the bounds for the purpose without satisfying the requirements for its issuance. It infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people. Thus, even before the Emergency Decree No. 9 was cancelled or invalidated, it is unconstitutional and void due to its violation of the Act, and further, it is unconstitutional in light of the current Constitution that provides for the protection of the fundamental rights infringed by Emergency Decree No. 9 (see, e.g., Supreme Court Decisions 2010Do5986, Dec. 16, 2010; 2011 early 689, Apr. 18, 2013; 2010Mo363, Apr. 18, 2013).

Ultimately, the violation of the Emergency Measure No. 9, which was instituted by applying the Emergency Measure No. 9, Paragraph 7, and Paragraph 1, which is unconstitutional or invalid, constitutes a case where the defendant's case under the former part of Article 325 of the Criminal Procedure Act does not constitute a crime. Therefore, the judgment of the court of final judgment convicting him/her of this part is erroneous by misapprehending the legal principles on the unconstitutionality of Emergency Measure No. 9

4. Conclusion

Since the appeal by the defendant is well-grounded, it is reversed under Article 364(2) of the Criminal Procedure Act without making a decision on the grounds for appeal by the prosecutor, and it is again decided as follows.The summary of the facts charged in this case is as shown in the annexed sheet, and the facts charged in this case is "when the facts charged are not a crime" and it is so decided as per Disposition by the decision of not guilty each of the defendants under the former part of Article 325 of the

The presiding judge, judge and deputy judge;

Judges Ginsung defect

Judge Park Jong-soo