2017 Inventory 56 Violation of Emergency Decree No. 9

A

Gangwon-gu Office (Public Trial)

Attorney B (Korean National Assembly)

Seoul Criminal Court Decision 78Da471, 607 decided Nov. 27, 1978

Part of the defendant

July 24, 2018

The defendant shall be innocent.

1. Summary of the facts charged

The Defendant was a second-year person in C University Political Diplomatic Department, and was holding a reading conference, etc. on every week by joining a meeting of Baman D on March 1, 1978 as a member of the early police officer D, who was a second-year member of C University.

① At around 18, 16:00, the Defendant: (a) obtained the so-called “private teaching institute democracy”, which contains the assertion that he will eliminate the spread of personal constitution at the same university electronic engineering and the second grade E on June 12, 1978; and (b) obtained the so-called “private teaching institute and democratic advice to deny the meeting of the unification subjects before the Sejong Culture Center; (c) made an unlawful expression using four copies of the same 8th grade mix to the 6th grade mix at the 5th grade mix in Seoul Central University; and (d) released the said unlawful expression to the 1st grade mix at the 4th grade mix in Seoul Central University; and (e) discovered the content of the 1st grade mix to the 1st grade 6th grade mix in Seoul Central University; and (e) discovered the content of the 1st grade mix to the 2nd grade 1st grade mix and the 2nd grade 3th grade mix in Seoul Central University.

2. The progress of the case and the Seoul District Criminal Court on November 27, 1978 applied paragraphs (7) and (2) of the Presidential Emergency Decree for the Protection of National Security and Public Order (hereinafter referred to as “Emergency Decree No. 9”) to the Defendant, and sentenced the Defendant to imprisonment for a maximum of one year and three months, a short of one year and one year, and a suspension of qualification for two years. The said judgment subject to a retrial became final and conclusive on December 18, 1978. The prosecutor filed a petition for a retrial on November 23, 2017 with the instant judgment subject to a retrial. On January 30, 2018, the said court commenced a retrial as to the said judgment subject to a retrial.

3. Determination

On March 21, 2013, the Constitutional Court rendered a decision of unconstitutionality through the en banc Order 70, 132, and 170 (Merger) rendered on March 21, 2013 as to Emergency Measure No. 9, which is the basis for finding the Defendant guilty in the judgment subject to a retrial, and the Supreme Court also declared that the above Emergency Measure was unconstitutional and invalid since it was in violation of the Constitution from the beginning of the first en banc Order 2011 dated April 18, 2013. The penal statutes retroactively lose effect due to the Constitutional Court’s decision of unconstitutionality or the court.

In a case where it is declared unconstitutional or null and void, the court shall render a verdict of innocence for a prosecuted case against which a public prosecution was instituted by applying the pertinent statutes in accordance with Article 325 of the Criminal Procedure Act. Furthermore, even if the penal statutes were repealed, if the “debrison” was concerning the statutes which were in violation of the Constitution and are null and void from the beginning, the defendant’s case constitutes grounds for innocence (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010).

4. Conclusion

Therefore, since the facts charged in this case do not constitute a crime, the defendant is acquitted in accordance with the former part of Article 325 of the Criminal Procedure Act.

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young