2014Check3 Violation of Presidential Emergency Decree No. 9

A

1. Defendant’s wife B;

2. Defendant C

3. Married d of the defendant.

4. Married E of the defendant.

Losses shall be held by public trial.

Law Firm F, Attorneys G, H, I

Defendant in the Seoul Criminal Court Decision 76Gohap20 delivered on April 21, 1976

Part on the case

March 26, 2014

The defendant shall be innocent.

1. The facts charged in this case

The Defendant is a person who is engaged in the export agency and intermediary business of double-end machines in the Seoul Jung-gu J. 608 office, and despite the knowledge that the act of spreading, spreading, or distorted facts under the Presidential Emergency Decree No. 9 (hereinafter referred to as the “Presidential Emergency Decree No. 9”) promulgated on May 13, 1975 and enforced on May 13, 1975, by means of assembly, demonstration, or by means of public communication, such as newspapers, broadcasting, broadcasting, telecommunication, etc., or by means of public communication, such as documents, drawings, videos, or music records, etc., and the act of openly asserting, instigating, instigating, or publicizing the Constitution of the Republic of Korea, or claiming for an amendment or abolition thereof, and the act of openly disseminating, distributing, selling, possessing, or displaying the contents thereof by means of broadcasting, news, or other means, and the act of openly expressing, distributing, selling, possessing, or displaying such contents.

A. On September 25, 1975, at K Cda located in Jung-gu, Jung-gu, Seoul, Seoul, one copy of the article, "slocks published in Japan from L," "slocks published in October, 1975," and keeps the above representations for up to 10,14 of the same year, knowing that the contents of the article were slandered and distorted, with the knowledge that they were published in Japan from L;

B. On October 14, 1975, at the same 13:00 p.m., the Korean Democratic Unification Promotion Council, which is a national organization re-led from L L, which was the organ of the Korean National Assembly for Democratic Unification Promotion, received one copy of the M published on September 1, 1975, which was the organ of the Korean National Assembly for Democratic Unification Promotion, and slanders against the opposition of the Constitution of the Republic of Korea, and held the said expressive materials by keeping them by the 16th of the same month, knowing that the contents were dissipatedd by distorted facts over all fields, such as Korean politics, economy, society, culture, etc.

2. Case progress

According to the records of this case, the Seoul Criminal Court found the defendant guilty on April 21, 1976, and sentenced the defendant to six months of imprisonment and one year of suspension of qualification for a crime of violating the Presidential Emergency Decree No. 9 (hereinafter referred to as the "Decision on Review"), and recognized that the judgment subject to review becomes final and conclusive on April 28, 1976 due to the waiver of the defendant's appeal.

3. Determination

A. Provisions of applicable provisions of the judgment subject to review

Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the "former Constitution") of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980) was enacted by Presidential Emergency Decree No. 9 of May 13, 1975, and the Presidential Emergency Decree No. 67 of Dec. 7, 1979 was cancelled by Presidential Notice No. 9 of Dec. 7, 1979; hereinafter referred to as the "Emergency Decree No. 9").

B. unconstitutionality of Emergency Measure No. 9

1) The State’s emergency power should be exercised within the minimum limit that is essential to remove the direct cause of the crisis when the State is in a serious crisis, and must conform to the requirements and limitations for the issuance of the Constitution that provides for the state’s emergency power. In Article 53(1) and (2) of the 198 Constitution of the Republic of Korea, it is limited to a state’s emergency power to overcome it when there is “necessary to take prompt action” when there is a natural disaster or serious financial or economic crisis, or when there is a serious threat or risk of national security, national security, or public peace and order.

2) However, it is clear that the contents of Emergency Measure No. 9 are to completely prohibit the discussion of the new constitution or to suppress people's resistance against so-called physical materials, and it does not exceed the limit for the purpose of Emergency Measure Authority, and it does not constitute a situation where the domestic and foreign political situation and social situation at the time of the issuance of Emergency Measure No. 9 are subject to the exercise of Emergency Measure Authority, which may cause a serious threat to the national critical crisis or national security. Thus, Emergency Measure No. 9 issued in such domestic and foreign political situation and social situation lack the requirements per se stipulated in Article 53 of the United States Constitution.

3) In addition, the contents of Emergency Decree No. 9 restrict the freedom of expression as stipulated in Article 18 of the Postal Constitution (Article 21 of the current Constitution) so that the State can guarantee the fundamental human rights of the people as much as possible, and restrict the freedom of body as stipulated in Article 10 of the Postal Constitution (Article 12 of the current Constitution) by denying the principle of a constitutional state through the full exclusion of warrant requirement, and by denying the principle of a constitutional state, it limits the freedom of residence as stipulated in Article 14 of the Postal Constitution (Article 16 of the current Constitution), and explicitly prohibiting the act of denying or filing a petition for abolition of the Postal Constitution (Article 26 of the current Constitution). Moreover, Article 23 (Article 26 of the current Constitution) of the Postal Constitution prohibits any assembly or demonstration or political intervention of a student who has not been permitted, and the competent Minister restricts the autonomy of a university or college as stipulated in Article 19 (Article 21 of the current Constitution).

4) As such, Subparag. 9 of the Emergency Decree 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 of exercising the requirements, prior to the cancellation or invalidation of Emergency Measure No. 9, it is unconstitutional and invalid due to its violation of the decent Constitution. Furthermore, in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Measure No. 9, it shall be deemed unconstitutional and invalid (see, e.g., Supreme Court en banc Order 2011Hun-Ba70, 132, and 170, Mar. 21, 2013).

(c) Measures to be taken by the court where the repealed or invalidated penal law is unconstitutional or invalid from the beginning.

In a case where the penal law has retroactively lost its effect due to the decision of unconstitutionality by the Constitutional Court, or the court has declared that a public prosecution has been invalidated by the application of the pertinent law, the accused case shall be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act. Furthermore, even if the penal law was repealed at the time of a new judgment, if the ‘dispeachment' was concerning the law that has no effect since it was in violation of the Constitution from the beginning, it constitutes a cause of innocence under the former part of Article 325 of the Criminal Procedure Act, and it does not constitute a cause of acquittal under Article 326 subparagraph 4 of the Criminal Procedure Act (Supreme Court en banc Decision 2010Do5986 Decided December 16, 2010).

4. Conclusion

Thus, each of the above facts charged constitutes a case where the Emergency Decree No. 9, Paragraph 7, Paragraph 2, Paragraph 1(a), and Paragraph 1(b) are unconstitutional or invalid and thus do not constitute a crime, and thus, the defendant is acquitted under the former part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

The presiding judge of the Supreme Court;

Judges Kim Gin-han

Judges in the order of precedence