[1] In a case where an abolished penal law is unconstitutional or invalid from the beginning, the court shall take measures against a prosecuted case against which a public prosecution was instituted by applying the relevant law (=adjudication of innocence)

[2] Whether the phrase “Presidential Emergency Measure No. 9”, which was issued based on Article 53 of the so-called Reference Constitution, violates the Constitution and thus is unconstitutional and invalid (affirmative)

[3] The case holding that in a case where the defendant was convicted of violating the Presidential Emergency Measure No. 9, and the execution of detention was suspended at the court of final appeal on the grounds that the Presidential Emergency Measure No. 9 was revoked, and the defendant's wife Gap filed a claim for criminal compensation, the case holding that Gap may claim for compensation for the defendant's detention due to the violation of the Presidential Emergency Measure No. 9

[1] In a case where the penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared that the statute has been unconstitutional or null and void, the court shall render a not-guilty verdict as to the prosecuted case against which a public prosecution was instituted by applying the pertinent statute in accordance with Article 325 of the Criminal Procedure Act. Furthermore, even if the penal law was repealed, if the “debate” was against the law that became null and void due to its violation of the Constitution from the beginning, the defendant’s case constitutes a ground for innocence as provided in the former part of Article 325 of the Criminal Procedure Act, and it cannot be said that

[2] The Presidential Emergency Measure for the Protection of National Security and Public Order (hereinafter “Emergency Measure No. 9”) issued based on Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “former Constitution”) is an infringement 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 meeting the requirements for its issuance. Thus, prior to the cancellation or invalidation of Emergency Measure No. 9, it is unconstitutional and invalid as it is in violation of the current Constitution, and further, it is unconstitutional and invalid in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Measure No. 9. 9.

[3] In a case where the defendant was convicted of violation of the Presidential Emergency Decree for the National Security and the Protection of Public Order (hereinafter “Emergency Decree No. 9”), and the execution of detention was suspended at the court of final appeal on the grounds that the Emergency Decree No. 9 was released, and thereafter the defendant’s wife Gap filed a criminal compensation claim against the defendant, the case holding that the court should have acquitted the defendant on the ground that the defendant’s case constitutes “where the defendant’s case is not a crime,” under the former part of Article 325 of the Criminal Procedure Act, where the defendant’s action was instituted by applying the Emergency Decree No. 9, which is unconstitutional and invalid, since the first violation of the Constitution, and the first part of Article 325 of the Emergency Decree No. 9 of the Criminal Procedure Act, and the reasons why the defendant was acquitted and the court at the time of the original judgment did not dispute the unconstitutionality of Emergency Decree No. 9, and thus, the defendant could not have been tried for the restoration of his/her reputation, and thus, the defendant’s appeal No. 16 subparag. 19 of the Emergency Decree

[1] Article 325 and Article 326 subparag. 4 of the Criminal Procedure Act / [2] Articles 8 (see Article 10 of the current Constitution, referring to Article 12 of the current Constitution), 10 (see Article 16), 14 (see Article 21 of the current Constitution, 21), 18 (see Article 22 of the current Constitution, referring to Article 26 of the current Constitution), 23 (see Article 26 of the current Constitution), and 53 ( Deletion), Article 31(4) of the current Constitution, Article 67 of the Presidential Emergency Decree for the Protection of National Security and Public Order (wholly amended by Act No. 970, Dec. 8, 1979), Article 16 (1), (2), (5), (7), and (8) of the former Constitution, Article 19 of the Criminal Procedure Act, Article 26 (1) and (3) of the former Constitution, Article 16 (1) and (2) of the Criminal Procedure Act, Article 197 (3)

[1] [2] Supreme Court en banc Decision 2010Do5986 Decided December 16, 2010 (Gong2011Sang, 259) / [2] Supreme Court en banc Order 77Mo19 Decided May 13, 1977 (Discarding), Supreme Court Decision 78Do813 Decided May 23, 197, Supreme Court Decision 78Do2071 Decided September 26, 1978 (Discarding), Supreme Court Decision 79Do2142 Decided October 30, 1979 (Discarding), Supreme Court Decision 79Do2391 Decided December 28, 1979 (Gong1980, 12506) (Discarding) (repealed)

Defendant

Claimant

Law Firm Shin & Yang, Attorney Lee Han-tae

Supreme Court Decision 79Do2149 Delivered on May 13, 1980

The appellant shall be paid 60,663,600 won.

1. Factual basis

The records show the following facts.

A. Between October 14, 1978 and October 16, 1978, the Defendant was indicted with the Seoul Criminal District Court on charges of violating the Presidential Emergency Decree for the Protection of National Security and Public Order (hereinafter “Emergency Decree No. 9”) by copying, producing, and distributing 150 copies of printed articles that contain the contents of slandering the Presidential Emergency Decree No. 9 (hereinafter “Emergency Decree No. 9”).

B. On May 9, 1979, the first instance court rendered a judgment of conviction that the Defendant was sentenced to imprisonment with prison labor for two years, suspension of qualifications for two years, and 180 days of pre-trial detention for two years on May 9, 1979. In the Seoul High Court case 79No794, the appellate court reversed the first instance judgment on August 8, 1979, and was sentenced to imprisonment with prison labor for one year, suspension of qualifications for one year, and a conviction to the effect that the pre-trial detention for one of the pre-trial detention for one year, and the first instance judgment included 180 days

C. Accordingly, the Defendant filed an appeal. On November 14, 1979, the Supreme Court of the final appeal rendered a decision to suspend the execution of detention against the Defendant (79 seconds63), and on May 13, 1980, rendered a judgment of acquittal by applying Article 326 subparag. 4 of the Criminal Procedure Act (hereinafter “instant original judgment”) on the ground that “Emergency Measure No.9 was rescinded by the Presidential Notice No.67 on December 8, 1979, and this constitutes a case where punishment was abolished due to the repeal of the statutes after the crime was committed.”

D. On April 20, 198, the Defendant died, and one of his/her property successors filed a claim for the instant criminal compensation on the ground that “where the Defendant would have had a significant reason to receive a verdict of innocence if he/she had no reason to obtain a judgment of acquittal,” pursuant to Articles 26(1)1 and 11 of the Criminal Compensation and Restoration of Honor Act (hereinafter “Act”).

2. Whether a claim for criminal compensation has arisen

(a) Measures to be taken by the court where the repealed or invalidated penal statutes were unconstitutional or invalid from the beginning;

In a case where the penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared that the punishment was unconstitutional or null and void, the court shall, pursuant to Article 325 of the Criminal Procedure Act, render a not-guilty verdict for the accused case against which a public prosecution was instituted by applying the pertinent law. Furthermore, even if the penal law was repealed, if the “definite” was against the law which became null and void since it was in violation of the Constitution from the beginning, the defendant’s case constitutes a cause of innocence as provided in the former part of Article 325 of the Criminal Procedure Act, and it does not constitute a cause of acquittal as provided in Article 326 subparag. 4 of the Criminal Procedure Act (see Supreme Court en banc Decision 2010Do598

B. Whether emergency action No. 9 is unconstitutional

(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 national emergency power which is exercised to ensure the existence of the nation should be respected. However, such a national emergency power should be exercised within the minimum limit necessary to remove the direct cause of the crisis when the State is in a serious crisis. Accordingly, it must conform to the requirements and limits for exercising the constitutional power under Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “former Constitution”) and 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 “former Constitution”) may not be an exception. Article 53(1) and (2) of the former Constitution of the Republic of Korea limits the exercise of the emergency power to “any natural disaster, serious financial or economic crisis, or serious threat or threat of public safety and order.”

(2) However, the contents of the Emergency Decree No. 9 are as follows: (a) “act of openly spreading or distorted facts by means of assembly, demonstration, newspaper, broadcasting, telecommunications, and other public radio wave means, documents, drawings, records, etc.; (b) acts of denying, opposing, duplicating, or slandering or disturbing the Constitution of the Republic of Korea; (c) acts of claiming, petitioning for, inducing, or publicizing the amendment or abolition thereof; (d) acts of openly excluding classes, research or school principal’s prior permission, or other ordinary and nonpolitical activities, excluding those conducted under the guidance or supervision of school authorities; and (e) acts of publicly slandering the student’s assembly, demonstration, or political participation,” and (e) acts of publicly spreading or disseminating contents of the said acts by broadcasting, reporting, or other means; (e) acts of producing, distributing, possessing, or displaying materials of such acts; (e) acts of violating the Constitution of the Republic of Korea against which the competent Minister would be subject to removal or non-political measures at the time of the issuance of such acts; (goring or attempted measures at the competent Minister).

(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 the 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 as stipulated in Article 18 of the 199 Constitution, and Article 10 (Article 12 of the current Constitution), which denies the principle of the rule of law by completely removing the warrant requirement, limits the freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution) of the 1999 of the 1999 Constitution. Furthermore, Article 23 (Article 26 of the current Constitution) of the 199 of the 1999 of the 1999 Constitution provides that all unauthorized student assemblies and demonstrationss may be prohibited, and Article 23 (1) of the current Constitution provides that the competent Minister shall order the suspension or suspension of school under its jurisdiction.

(4) As such, subparagraph 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 its issuance without satisfying the requirements for its issuance. Thus, prior to the cancellation or invalidation of Emergency Decree No. 9, it is unconstitutional and invalid due to its violation of the Act, and further, it is unconstitutional and invalid in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Decree No. 9 (see Supreme Court en banc Decision 2010Do5986, supra).

In contrast, Supreme Court en banc Order 7Mo19 Decided May 13, 1977; Supreme Court Decision 78Do813 Decided May 23, 1978; Supreme Court Decision 78Do2071 Decided September 26, 1978; Supreme Court Decision 79Do2142 Decided October 30, 1979; and Supreme Court Decision 79Do2391 Decided December 28, 1979; and other Supreme Court Decision 79Do2391 Decided December 28, 1979; and Supreme Court Decision 78Do813 Decided May 23, 1978.

C. Occurrence of criminal compensation claim

The Emergency Decree No. 9, which is the premise of a judgment of acquittal, applicable to the facts charged against the defendant, is in violation of the Constitution and becomes null and void in the beginning. In the event a public prosecution is instituted by applying Emergency Decree No. 9, which is unconstitutional or invalid, the court should have rendered a judgment of innocence (see Supreme Court en banc Decision 2010Do5986, supra).

However, the circumstances and reasons behind the Defendant’s judgment of acquittal, and the facts leading up to the Defendant’s failure to dispute the unconstitutionality of Emergency Measure No. 9 at the time the original judgment was rendered by the court to refrain from judicial review of Emergency Measure No. 9 at the time of the original judgment in this case, and considering the following factors: (a) the validity of Emergency Measure No. 9 at the time of the trial proceeding and the measures to be taken by the court in the event the abolished penal statutes were unconstitutional and invalid from the beginning; and (b) the decision in this case declaring the unconstitutionality and invalidation of Emergency Measure No. 9, which would have

Therefore, the claimant, who is the defendant's property heir, can claim compensation against the State for having been detained due to the violation of Emergency Measure No. 9, based on Article 26 (1) 1, Article 3 (1), and Article 11 of the Act.

3. Scope of criminal compensation;

Article 5(1) of the Act and Article 2 of the Enforcement Decree of the Act provide that the minimum amount of compensation per day for pre-trial detention shall be the minimum amount of daily wage under the Minimum Wage Act of the year in which the cause of claim for compensation occurred, and the maximum amount shall be five times the minimum amount of daily wage.

However, the minimum amount of daily wage under the Minimum Wage Act of 2013, which belongs to the date of the instant decision, is KRW 38,880, and the minimum amount of compensation is KRW 38,880 per day, and the maximum amount is KRW 194,40 per day (=38,880) x 5). In addition, considering the type and period of detention recorded in the records of this case, loss of property and mental suffering, loss of profits that could have been gained, mental suffering, intentional or negligent damage of the police, the prosecutor's office, and the court, and all other circumstances related to the calculation of the amount of compensation, the amount of compensation for the claimant shall be determined as KRW 369,180 (number of days actually included in the imprisonment among the days of detention pending the judgment of the court of first instance) + 189 days (i.e., the number of days actually included in the number of days of detention before the judgment of the court of first instance) x 160 days, 160 days x 140 days x 160 days of statutory compensation

4. Conclusion

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the ground that this case's criminal compensation claim is accepted.

Justices Yang Chang-soo (Presiding Justice)