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The defendant shall be innocent.
Reasons
1. The summary of the facts charged is as shown in the annexed sheet.
The Defendant, in collusion with E, F, and G, constitutes an anti-government organization, which is the National H General Association of Korea (hereinafter referred to as “H”), and was engaged in leading duties as a member thereof, and did not inform the investigative intelligence organization of the violation of the National Security Act, even though there were activities, such as preparation for insurrection, conspiracy for insurrection, the Constitution of the Republic of Korea, and the Presidential Emergency Decree No. 1, and the organization of H prior to the declaration of the Presidential Emergency Decree No. 4, even though there was any activity, such as
2. Progress of the case
A. On July 13, 1974, the Emergency Decree No. 2, which was established by the Presidential Emergency Decree No. 2 on January 8, 1974, recognized the Defendant as guilty of the above facts charged, and sentenced the Defendant to 15 years imprisonment and suspension of qualifications for 15 years (hereinafter “instant judgment subject to a retrial”) and the said judgment on October 25, 1974 became final and conclusive.
B. On September 23, 2016, the Defendant filed the instant petition for retrial, and this court rendered a decision to commence a retrial on November 8, 2016, and the said decision to commence a retrial became final and conclusive as is.
3. Determination
A. Items 1 and 4 of the Emergency Decree, which were issued based on the Emergency Decree under Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of Oct. 27, 1980, hereinafter “former Constitution”), violated the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for purposes without satisfying the requirements for its triggering. Thus, even before the Emergency Decree Nos. 1 and 4 were cancelled or invalidated, it is unconstitutional and invalid because it is in violation of the new Constitution. Furthermore, it is unconstitutional even in light of the current Constitution, which provides for the guarantee of fundamental rights infringed by subparagraphs 1 and 4 of the Emergency Decree.