Whether the lifting of martial law constitutes "when a sentence is repealed due to the repeal or repeal of statutes after the crime (negative)

The declaration of martial law is a measure taken before the national emergency situation, and it is not due to the change of the legal ideology from reflective consideration that the punishment itself for the past violation was unfair or excessive. Thus, this is not a case of "when a sentence is repealed due to the repeal or repeal of statutes after the crime, even though it is the requirement for judgment of acquittal in the crime of violation of martial law."

Article 326 subparag. 4 of the Criminal Act, Article 371 subparag. 4 of the Military Court Act

Supreme Court Decision 81Do721 Decided May 6, 1981

Defendant 1 and one other

(National Ship) Attorney Park Young-young

Military Court Decision 80 High Court Decision 600 delivered on January 31, 1981

All appeals are dismissed.

The number of days of detention pending trial after an appeal shall be included in the principal sentence 55 days.

The Defendants and the state appointed defense counsel's grounds of appeal are examined together.

Martial law is a military force in regard to a state of national emergency, which is declared when it is necessary to maintain military or public peace and order, and when a state of emergency is returned to normal situations, the release of martial law is a measure following the safeguard of the situation. Since the punishment itself was unfair, or because it is not due to the change of legal ideology from reflective consideration that the punishment itself was excessive or excessive punishment was excessive, there is no ground to extinguish the aggravated punishment due to the cancellation of martial law, the crime of spreading martial law during the period of martial law and the crime of violating martial law shall be punished in accordance with the law at the time of the act after the lifting of martial law (see, e.g., Supreme Court Decisions 81Do426, Mar. 31, 1981; 62Do257, Jan. 31, 1963). Ultimately, the cancellation of martial law does not constitute the abolition of statutes after the abolishment of a crime, and thus, the Defendants’ acquittal should be acquitted on the premise that it is groundless.

In addition, since the provisions of Article 432 of the Military Court Act, which did not permit an appeal on mistake of facts or unreasonable sentencing, cannot be deemed to have violated the Constitution, there is no question about the misunderstanding of facts or unreasonable sentencing.

Therefore, all appeals by the Defendants are dismissed, and 55 days out of the number of days pending trial after the appeal shall be included in the principal sentence in accordance with Article 57 of the Criminal Act. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Jung-tae (Presiding Justice)