(영문) 서울중앙지방법원 2018.1.26. 선고 2017재고합63 판결

The summary of this part of the facts charged is that at around 14:00 on Nov. 22, 1976, the Defendant: (a) the Defendant: (b) sent to E, “F, G, and all of them from the Japanese military forces; (c) does not have any circumstances; (d) doing so; (c) doing so; (d) doing so; (e) doing so; (e) doing so; (e) doing so; (e) doing so; (e) doing so; (e) doing so; and (e) doing so. doing so.”

2. Case progress

The record reveals the following facts.

A. On December 23, 1977, the Defendant was charged with a violation of the Presidential Emergency Decree No. 9 (hereinafter referred to as the “Emergency Decree No. 9”) and the Presidential Emergency Decree No. 9 (hereinafter referred to as the “Emergency Decree No. 9”) for the purpose of protecting the national security and public order, and sentenced to five years of suspension of execution and three years of suspension of qualification (hereinafter referred to as the “Review Decision”). B. The Prosecutor appealed against the judgment, Seoul High Court 78No179, but was sentenced to the dismissal on March 30, 1978. On April 7, 1978, the said judgment became final and conclusive. Since Emergency Decree No. 99 on December 13, 2017 was unconstitutional and void, the Prosecutor asserted that there was a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act and decided that there was a ground for retrial under Article 420 subparag. 14, 201.

3. Determination

A. unconstitutionality of Emergency Measure No. 9

In the event of a serious crisis that is unable to be dealt with by the means of exercising power in accordance with the constitutional order at ordinary times, the presidential decision on the national tension which is exercised to ensure the existence of the State should be respected. However, the national emergency power should be exercised within the minimum limit that is indispensable for the State to remove the direct cause of the crisis when the State is in a major 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 the Constitution of 1980, 10, 27; hereinafter referred to as the "former Constitution"), and in this respect, the emergency measure power under Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of the Constitution of 1980, 10, 27; hereinafter referred to as the "former Constitution") shall not be an exception. Article 53(1) and (2) of the former Constitution also limits the exercise of the emergency measure to “when it is facing or is likely to be threatened with serious financial or economic crisis.”

However, the contents of the Emergency Decree No. 9 issued based on the above are as follows: 'the act of openly spreading or distorted facts'; 'the act of denying, opposing, distort, or slandering the Constitution of the Republic of Korea by means of public utility means, such as assemblies, demonstrations or newspapers, newspapers, drawings, pictures, and music records, 'the act of claiming, opposing, inducing, or publicizing the amendment or abolition thereof'; 'the act of openly harming the student's assembly, demonstration or political participation, or other measures except for formal and non-political activities, with the instruction and supervision of the school authorities, or with the prior permission of the principal, 'the act of openly excluding formal and non-political activities' (each subparagraph of paragraph 1). It is prohibited from publicly spreading the contents of the Emergency Decree by means of broadcasting, reporting, or other means; 'the act of producing, distributing, selling, possessing, or displaying representations of the contents thereof; 'the act of violating the Constitution of the Republic of Korea' or 'the act of openly harming the student's assembly, demonstration or temporary action.

In addition, the contents of Emergency Decree No. 9 are seriously restricting the freedom of expression or the freedom of body and 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 restricts the freedom of expression, and Article 10 (Article 12 of the current Constitution) of the current Constitution by denying the principle of rule of law by completely excluding the warrant requirement, not only restricts the freedom of body as stipulated in Article 14 (Article 16 of the current Constitution) of the current Constitution, but also restricts the right to petition as stipulated in Article 23 (Article 26 of the current Constitution) of the current Constitution by explicitly prohibiting the acts of denying the new Constitution or filing a petition for abolition. Moreover, Article 9 of the current Constitution prohibits all assemblies, demonstrationss, and political actions by a student who has not been permitted, and Article 21 (1) of the current Constitution provides that the current Constitution shall also restrict the student's freedom.

The Emergency Measure No. 9, supra, 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 without satisfying the requirements to invoke the Emergency Measure. Therefore, even before the Emergency Measure No. 9 was rescinded or invalidated, it is unconstitutional and invalid due to its violation of the Act, and further, it is apparent that it is unconstitutional and invalid in light of the current Constitution that has the provision on the guarantee of fundamental rights infringed by Emergency Measure No. 9 (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18,

B. Measures to be taken by the court where the repealed or invalidated penal laws were unconstitutional or invalid from the beginning.

In a case where a penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared that a punishment has been unconstitutional or invalid, 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 statutes. Furthermore, even if the penal law was repealed, if the “depristion” was concerning the statutes that were not effective as it was in violation of the Constitution from the beginning, the accused case constitutes a cause of innocence (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010).

4. Conclusion

If so, the facts charged in this case constitute a case where the Emergency Decree No. 9, which is the applicable law, is unconstitutional and invalid from the beginning, and thus does not constitute a crime, and thus, the defendant is acquitted pursuant to the former part of Article 32