(영문) 서울중앙지방법원 2018.1.26. 선고 2017재고합52 판결

피고인은 1975. 8. 24. 10:30경 인천 동인천역 구내 플랫폼에 설치된 의자에 앉아 열차를 기다리던 중 아침에 마신 술기운이 오르자 주기에 편승하여 열차를 대기 중이던 C(19세) 등 10여 명을 향하여 "D이 군인을 했으면 얼마나 했느냐. 얼마 남지 않았다.", "너희들이 아무리 그래 봐라. 얼마 안 있으면 인민군이 따발총을 가지고 와서 쏴 죽인 다."라는 취지의 말을 여러 번 반복함으로써 유언비어를 날조하여 이를 유포하였다.

2. Determination of the original judgment and the decision to commence a retrial

A. On December 29, 1975, the Seoul District Criminal Court found the Defendant guilty of the charges in the instant case and sentenced the Defendant to imprisonment with prison labor for one year and six months and one year and six months of suspension of qualifications for the purpose of national security and the protection of public order (hereinafter referred to as the "Emergency Measure No. 9"), and then dismissed all the appeal filed by the Defendant and the prosecutor, and finally became final and conclusive.

B. On November 23, 2017, the Prosecutor rendered a request for retrial pursuant to Article 424 subparag. 1 of the Criminal Procedure Act, on the ground that there was a ground for retrial in the judgment that rendered a judgment of conviction on the grounds that the Emergency Measure No. 9 was unconstitutional. On January 3, 2018, this court rendered a decision of commencing a retrial on the ground that there was a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act in the judgment subject to retrial, and the said decision became final

3. Determination

An Emergency Measure No. 9 issued based on the Emergency Measure stipulated in Article 53 of the former Constitution (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 satisfying the requirements for triggering the Emergency Measure. Thus, even before the Emergency Measure No. 9 is rescinded or invalidated, it is unconstitutional and invalid as it is in violation of the new Constitution. Furthermore, in light of the current Constitution that has the provision on guaranteeing fundamental rights infringed by Emergency Measure No. 9, it is apparent that the Emergency Measure No. 9 is unconstitutional and void (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 20

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 Furthermore, even if the penal law was repealed, if the “depristion” was concerning the statutes which were null and void as they were in violation of the Constitution from the beginning, the defendant’s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

4. Conclusion

Therefore, the facts charged of this case constitute a case where the defendant's case prescribed in the former part of Article 325 of the Criminal Procedure Act does not constitute a crime since the Emergency Decree No. 9, which is the applicable law, was unconstitutional and invalid from the beginning, and thus, the defendant is acquitted, and the summary of the judgment against the defendant is announced in accordance with