2011Inventory 36 Violation of Emergency Decree No. 9

1. A;

2. B

Defendants

Cho Young-hee (Trial)

Law Firm C (For the defendant)

Attorney D

Gwangju District Court Decision 78Gohap170, 200 decided December 21, 1978

February 5, 2013

Defendants are not guilty.

1. Summary of the facts charged

(a) Defendant A: From 18:00 on June 28, 1978, the above 18: G, H, I, J, K, L, M, N, etc., which is a student of the F University at the Dong Office of Gwangju, “I will stop from 12:0 on the following day in collusion with F.I, K, L, M, and I, and will 12:0 on the basis of F.I.D.’s release of “I.D.’s agricultural and fishery activities at F.I.K.,” and “I.K., I.F.,” which had been printed in advance by G.I., “I.K.,” and “I.K., I.F.F., I.D.,” and “I.K., I.F.F., I.D.,” and “I.F.F., I.D.,” and “I.D., I.F., I.D.,” were not able to observe the nation’s will.

2. Determination

(a) the measure where the repealed penal law is unconstitutional or invalid;

In principle, in a case where the statutes applicable to a criminal facts have been abolished in a case where a new trial was commenced, a judgment of acquittal shall be rendered by applying Article 326 subparagraph 4 of the Criminal Procedure Act to the facts constituting an offense. However, in a case where the penal law retroactively loses its effect due to the decision of unconstitutionality by the Constitutional Court or the court declares that the penal law has been unconstitutional or null and void, a defendant prosecuted by applying the pertinent statutes must be acquitted pursuant to Article 325 of the same Act. Thus, even if the penal law was repealed at the time of a new trial, if the "deption" was made against the statutes that have no effect due to the first violation of the Constitution, it shall be deemed that the case constitutes grounds for innocence (see Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010).

B. Whether the presidential emergency measures ("Emergency Measures No. 9") aimed at protecting the national security and public order are unconstitutional

Inasmuch as the state’s emergency power should be exercised within the minimum necessary to eliminate the direct cause of the crisis when the state is in a serious crisis, the requirements and limitations for the issuance of the Constitution that provides for the state’s emergency power should be observed. Thus, the emergency power provided for in Article 53 of the former Constitution (wholly amended by Act No. 9 of October 27, 1980, 27, hereinafter referred to as the “former Constitution”) cannot be an exception. Article 53(1) and (2) of the former Constitution limits the exercise of the emergency power to be used for overcoming the need to take prompt measures, as there is a natural disaster, serious financial or economic crisis, or a serious threat or threat of national security or public peace and order.

However, the contents of the Emergency Measure No. 9 issued based on this, are all prohibited from spreading the contents of a will through broadcast, news or other means, producing, distributing, selling, possessing, or displaying the contents of a will, or from distorted the facts, by means of public radio waves such as b documents, demonstrations, newspapers, broadcasts, broadcasting, and music records, or by petitioning, instigating, or publicizing the Constitution of the Republic of Korea, or claiming an amendment or abolition thereof, with the guidance and supervision of the school authorities, or by the head of the school, except for classes conducted under the guidance and supervision of the school authorities, research, or other ordinary non-political activities (each subparagraph of paragraph (1)), and is prohibited from openly harming the student’s assembly, demonstration, or political participation and measures (each subparagraph of paragraph (1)), or from spreading the contents of a will, by producing, distributing, possessing, or displaying the contents of a will, by means of communication or communication (Paragraph (2) or any person who violates the measures of the competent Minister at the time of such assembly, demonstration or emergency measures shall be limited to imprisonment for not less than ten years, and any person who has violated the right to suspend qualifications for not more than ten years or may be subject to arrest or publicly notified.

In addition, Article 18 (Article 21 of the current Constitution) of the Criminal Procedure Act limits the right to petition, etc. as provided in Article 23 (Article 26 of the current Constitution) of the Criminal Procedure Act by denying the principle of the rule of law by restricting the freedom of expression as provided in Article 18 (Article 21 of the current Constitution) and completely excluding the warrant requirement, and by prohibiting the act of denying or explicitly rejecting a conscientious constitution, and by prohibiting the act of petitioning for abolition, which is stipulated in Article 10 (Article 12 of the current Constitution) of the current Constitution. Thus, Article 23 (Article 26 of the current Constitution) of the current Constitution infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limit for the purpose of its issuance without meeting the requirements for its issuance. Thus, it is unconstitutional and invalid since the Emergency Decree No

3. Conclusion

Therefore, Emergency Decree No. 9, which served as the basis for instituting a public prosecution against the Defendants, is unconstitutional and invalid. Since the facts charged in the instant case are not a crime, it is so decided as per Disposition by the assent of all participating Justices on the bench that each Defendants not guilty under the former part of Article 32

At least the presiding judge

Judges Gangseo-gu

Judges Yang Jin-jin