Whether emergency martial law has been rescinded and whether it has been punished for violation of the Decree prior to such lifting.

Even if the declaration of emergency martial law is invalidated due to the cancellation of the declaration, the martial law still exists, which is a punishment law for the violation of the declaration prior to the cancellation of the declaration, so it cannot be deemed that the declaration of martial law, which is only a prohibited law, has been invalidated, and thus, it does not constitute a case where the sentence is abolished following the repeal or repeal of the law

Article 13 of the Martial Law Act; Article 15 of the Martial Law Act; Article 10 Subparag. 2 (b) of the Martial Law Declaration; Article 1(2) of the Criminal Act; Article 326 Subparag. 4 of the Criminal Procedure Act

Defendant 1 and two others

Defendants

Water Security Command General Martial Law Council (80 Assistant military units 571)

The judgment of the court below is reversed.

A defendant, etc. shall be punished by imprisonment for one and half years.

The detention days prior to the pronouncement of the judgment of the court below shall be 20 days each included in the penalty.

380 copies (Evidence No. 1) of seized printed articles shall be confiscated from Defendant 2, respectively, by the same copying log (Evidence No. 3), the same copying log (Evidence No. 4) from the same defendant, etc.

The first point of the appeal of Defendant 3 and the first point of the appeal of Defendant 1 and 2 is that the emergency martial law declared on October 27, 1979 does not meet the constitutional requirements and is null and void. Since the defendant et al. seeks to recover freedom and rights from the country by the declaration of null and void martial law, since the defendant et al. exercised legitimate rights, the judgment of the defendant et al. is a justifiable act, so the judgment of the court below of the defendant et al. is not a crime. The second point of the appeal of the defendant 1 and 2 is that the defendant et al. is a justifiable act, and the second point of the appeal of the above defendant et al. is that the martial law declaration, which is a basis for recognizing the conviction of the court below as guilty, becomes null and void at the same time as the cancellation of emergency martial law on January 24, 1981, even if the judgment of the court below violated the above order, it is an object of acquittal, which affected the interpretation of laws or its judgment, and the third point of appeal of the defendant 2.

Therefore, the first issue of Defendant 3’s grounds of appeal and the first issue of the grounds of appeal by Defendants 1 and 2 is that the President’s declaration of martial law has a high level of political and military character, and the court cannot determine the legitimacy thereof, and it cannot be said that it is a legitimate invalidation. Thus, even if the above emergency martial law declared by acting for the President on October 27, 1979 and the basic rights of the people were partially restricted by the Presidential Decree, it cannot be said that it is unconstitutional or unlawful.

Therefore, it is not reasonable to see that the judgment of the defendant et al., which is an act contrary to this order, cannot be viewed as a legitimate exercise of rights or a legitimate act. Therefore, there is no argument about this point.

Next, the second point of the grounds for appeal by Defendants 1 and 2 is health, and it is argued that the above emergency martial law was rescinded on January 24, 1981 and the first 10 of martial law was invalidated. However, the court below's ruling by the defendant, etc., which is the violation of subparagraph 10 of the martial law and the first Martial law, still remains as it is. Since the martial law declaration, which is merely a prohibited law, has been invalidated and the first 10 is invalidated, it cannot be deemed as a case where the sentence is abolished due to the repeal or repeal of the law after the crime. Thus, the grounds for appeal by the above defendants are groundless.

Next, Defendant 2’s assertion of unreasonable sentencing, which is the third point of Defendant 2’s grounds for appeal, and the lower court’s sentence against Defendant 1 and Defendant 3, are examined ex officio, and the Defendants committed this case without separation in the field of heroopic examination, as both students’ status, committed this case’s crime by entering the atmosphere of liberalization that was limited to the private teaching institute at the time. Defendant et al., as the primary offender, is a young generation who is still on the way of learning, etc., the sentence imposed by the lower court against the Defendant et al. in this regard is deemed to be too heavy, and thus, the lower court should be reversed unfairly.

Therefore, pursuant to Article 364(2) and (6) of the Criminal Procedure Act, the judgment of the court below against the defendant, etc. shall be reversed and the judgment shall be rendered again as follows.

The relationship of criminal facts and evidence recognized by a member is the same as the corresponding part at the time of original adjudication, and therefore, they are cited in accordance with Article 369 of the same Act.

Article 15, Article 13, Article 10 (2) of the Martial Law, Article 10 (2) of the Martial Law, and Article 30 of the Constitution of the Republic of Korea are applicable to the judgment of the defendant, etc., and the defendant, etc. shall be punished by imprisonment of one year and six months, and two days of detention before the sentence of the original judgment shall be included in the above sentence under Article 57 of the Criminal Act, and 380 copies (Evidence 1) of the seized articles are articles generated from the crime of this case and are not owned by any person other than the defendants, and the same copying line (Evidence 3), one same copying line (Evidence 4) and one same rank line (Evidence 4) are articles that were provided for the crime of this case and are owned by any person other than the defendant 2. Thus, the above 380 articles of custody from the defendants under Article 48 (1) 1 and 2 of the Martial Law shall be confiscated from the defendants, and the above 1st and the above 1st bottle of the defendant 2.

It is so decided as per Disposition.

Judges Kim Young-jin (Presiding Judge)