The judgment of the court below is reversed.

The defendant shall be innocent.

The following facts are acknowledged according to the records of the case.

The Defendant was indicted for violating the Presidential Emergency Decree No. 9 of May 13, 1975 (hereinafter “Presidential Emergency Decree No. 9”) for the national safety and the protection of public order. The Defendant was convicted of the charges by the Gwangju District Court 76Gohap102. On September 17, 1976, the said court found the Defendant guilty of both the charges against the Defendant and sentenced the Defendant to two years of imprisonment and suspension of qualification.

The Defendant and the prosecutor appealed to the above judgment as the Gwangju High Court 76No542, and the above court reversed the judgment of the court below on February 24, 1977 and sentenced the Defendant to imprisonment with prison labor for one year and six months and suspension of qualifications for one year and six months (hereinafter “instant judgment subject to a retrial”). The instant judgment subject to a retrial became final and conclusive as it is.

On the other hand, since Emergency Measure No. 9 is unconstitutional, the Defendant asserted that there exists a ground for retrial in the judgment subject to retrial, and that there was a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act and Article 47(3) of the Constitutional Court Act, since Emergency Measure No. 9 of March 5, 2014 was invalid from the beginning, this Court rendered a decision to commence a retrial based on the determination that there was a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act

Summary of Grounds for Appeal

Defendant

In addition, there is no error of law by misunderstanding of facts and misunderstanding of legal principles as to Emergency Measure No.9.

The sentence of the lower court on unreasonable sentencing is too unreasonable.

The prosecutor appealed for the interest of the defendant.

Judgment

Before determining the grounds for appeal by the defendant and the prosecutor, we examine ex officio whether the Emergency Measure No.9 is unconstitutional.

The statutes applicable to facts constituting an offense in a case for which a new trial has commenced shall be at the time of judgment.