(영문) 서울고등법원 2013.9.13.선고 2013재노65 판결

A. The Defendant was indicted on the charges of violation of the Presidential Emergency Decree No. 9 (Presidential Emergency Decree No. 9, May 13, 1975; hereinafter “Emergency Decree No. 9”) and the violation of the Anti-Public Law for the protection of national security and public order, such as the summary of the charges charged. The above court recognized the Defendant as guilty of all the charges against the Defendant on February 27, 1976 and sentenced the Defendant to three years of imprisonment and suspension of qualification.

B. Accordingly, the Defendant appealed on the ground of mistake of facts, unfair sentencing, and the prosecutor’s appeal. On June 10, 1976, the Seoul High Court, which was the appellate court, rejected Defendant’s assertion of mistake as to the violation of Emergency Measure No. 9 by the above court 76No695 on the ground of the above court’s 76No695 on June 10, 1976. As to the Defendant’s violation of the above Emergency Measure No. 9, the lower court acquitted Defendant on the grounds that there is no evidence to prove that the Defendant’s act constitutes an act of violation of anti-public law, which constitutes an anti-government organization or its members, reversed the judgment of the lower court on the ground that there is no evidence to find that the act of the Defendant would benefit an anti-government organization or its members, and sentenced the Defendant

C. After that, on June 10, 2013, the applicant filed a request for a new trial on the judgment rendered by this Court No. 2013No. 65, and this Court rendered a decision to commence a new trial on July 31, 2013, considering that the Emergency Measure No. 9 was unconstitutional and invalid from the beginning on July 31, 2013, and thus, there were grounds for a new trial as stipulated in Article 420 subparag. 5 of the Criminal Procedure Act, the decision to commence a new trial on the part of the judgment subject to new trial became final and conclusive as it is,

2. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts

Since the written indictment is a disposition document prepared by the prosecutor, the defendant has copied and distributed a copy of the indictment.

Even if there is no illegality, the court below found the defendant guilty of all the facts charged of this case, and erred in misunderstanding of facts by finding the defendant guilty of all of the facts charged of this case, although there were reasonable grounds to believe that the act was not a crime under the law.

2) Unreasonable sentencing

The punishment sentenced by the court below (three years of imprisonment and two years of suspension of qualifications) is too unreasonable.

B. Public prosecutor (an unreasonable sentencing decision)

The sentence sentenced by the court below is too uneasible and unfair.

3. Scope of the judgment of this court.

Since a new trial is an emergency remedy that is recognized only for the benefit of the defendant against the final judgment of conviction (Article 420 of the Criminal Procedure Act), the judgment of innocence cannot be subject to a new trial (Article 420 of the Criminal Procedure Act). However, since the fact of violation of Emergency Measure No. 9, which is the convicted part of the defendant among the judgment of the new trial of this case, and the fact of violation of antipublic law, are inseparably indivisible as a crime of several crimes, the fact of violation of antipublic law, which is the convicted part, among the judgment of the new trial against the defendant, is also included in the part of the judgment of the new trial.

However, with respect to the part which cannot be the object of a new trial, which is recognized only for the benefit of the defendant in light of the nature of the new trial system, which is recognized as a final judgment of conviction, the effect of the decision on commencing a new trial, and the new trial court cannot reverse the recognition of innocence by re-examination as to that part (see Supreme Court Decision 96Do477, Jun. 14, 1996, etc.). Thus, although the decision on commencing a new trial of this case included a violation of anti-public law, which was found not guilty as above, the scope of the judgment of this court is limited to the violation of Emergency Decree No. 9, which is the part found guilty in the judgment subject to new

4. Determination

A. Whether Emergency Measure No. 9 is unconstitutional

In the event of a serious crisis that is unable to cope with by the method of exercising power in accordance with the constitutional order at ordinary times, the presidential decision on the national emergency power which is exercised to guarantee the existence of the State should be respected. However, such a national emergency power should be exercised within the minimum necessary limit when the State is in a serious crisis, and it must comply with the requirements and limits for exercising the constitutional power that provides for the national emergency power, and in this respect, the emergency power provided for in Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the "former Constitution") shall not be an exception. Article 53(1) and (2) of the former Constitution of the Republic of Korea also restricts the exercise of the emergency power to “natural, serious financial or economic crisis, or national security or public peace and order,” and thus, it is necessary to overcome it.

However, the contents of Emergency Measures No. 9 issued on the basis of the Emergency Measures are as follows: 'act of openly exposing, spreading or distort facts'; 'act of denying, opposing, distorting, or disturbing the Constitution of the Republic of Korea by means of public radio waves, such as assemblies, demonstrations or newspapers, newspapers, broadcasting, telecommunications, documents, drawings, records, etc., 'act of asserting, opposing, distort, inducing, or opposing the amendment or abolition thereof'; 'act of openly harming the student's assembly, demonstration or political participation, or other measures except with the instruction and supervision of the school authorities, or with the prior permission of the principal of the school, or with the prior permission of the principal of the school, 'act of openly harming the student's assembly, demonstration or political participation, or other non-political activities (each subparagraph of paragraph (1)); 'act of openly distributing, distributing, selling, selling or displaying the contents thereof by means of broadcast or news, or any person who violates this paragraph (2) shall be subject to seizure or attempted measures of the competent Minister for a period of not more than 1 year.

A person, at the time of committing an offense, may take measures such as the removal or removal of his/her representative, head, officer, employee, school staff, or student, or the suspension, closure, inter-regional closure, inter-regional closure, dissolution, or closure of a school, organization, or business, or head of the school, organization, or business, or head of the school, enterprise, or head of the school, organization, or head of the school, organization, or head of the school, etc. (paragraph 5). This goes beyond the limit for the purpose of emergency measures because it is clear that the discussion on the new constitution itself is completely prohibited or it is aimed at suppressing the national resistance against the so-called physical system, and the domestic and foreign political situation and social situation at the time of

As an emergency situation, it does not constitute a situation that is likely to pose a threat to a serious crisis of the State or a serious impact on the national security, and thus, the Emergency Measure No. 9 issued in such domestic and foreign political situation and social situation lack the requirements provided by Article 53 of the United States Constitution.

In addition, the contents of Emergency Measures 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), it limits the freedom of expression provided by Article 18 (Article 21 of the current Constitution), and completely excludes the principle of the rule of law by denying the principle of the rule of law, and it limits the freedom of residence provided by Article 10 (Article 12 of the current Constitution) of the current Constitution, as well as the right to petition provided by Article 14 (Article 16 of the current Constitution) of the current Constitution.

As such, subparagraph 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 without satisfying the trigger requirements. Thus, prior to the cancellation or invalidation of the Emergency Decree No. 9, it is unconstitutional and invalid due to its violation of the U.S. Constitution. Furthermore, in light of the current Constitution that provides for the guarantee of fundamental rights infringed by subparagraph 9 of the Emergency Decree, it shall be deemed unconstitutional and invalid (see, e.g., Supreme Court Decisions 2010Do5986, Dec. 16, 2010; 201 early 689, Apr. 18, 2013; 2010Mo363, Apr. 18, 2013).

B. Ex officio determination on the violation of Emergency Decree No. 9 among the facts charged in the instant case

Before determining the grounds for appeal by the Defendant and the prosecutor, the part of the facts charged in this case which was prosecuted by applying the Emergency Decree No. 9, which was unconstitutional and invalid, as seen above, should have been pronounced not guilty on the ground that the defendant's case under the former part of Article 325 of the Criminal Procedure Act constitutes "when the defendant's case was not a crime," but should have been pronounced not guilty. However, the court below erred in the misapprehension of legal principles as to the determination of unconstitutionality of Emergency Decree No. 9, which

5. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, without examining the grounds for appeal by the defendant and prosecutor, on the ground that the violation of Emergency Decree No. 9 among the judgment of the court below is in violation of the Emergency Decree No. 9.

The part of the judgment of the court below, including the violation of the anti-public law, which has started a new trial, shall be reversed in its entirety, and it shall be decided again as follows after the pleading.

The facts charged of this case against the defendant are as shown in the summary of the attached facts charged. Among them, the facts charged of violation of Emergency Decree No. 9 constitutes "where the defendant's case does not constitute a crime", and the violation of anti-public law constitutes "when there is no proof of criminal facts", and thus, the defendant is acquitted under the former and latter parts of Article 325 of the Criminal Procedure Act, and the summary of the judgment of this case is published in accordance with Article 440 of the Criminal Procedure Act.