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대구고등법원 2015.06.23 2013재노3 (1)

1. The part of the judgment of the court below against the defendant is reversed.

2. The defendant is innocent;


1. According to the records of the case, the following facts are acknowledged.

A. The Defendant was prosecuted by the Busan District Court 78Dahap292, 372 (Joint) as stated in the separate sheet as charged, and the above court convicted the Defendant of the above charges on July 31, 1978, and sentenced the Defendant to one year and one year of suspension of qualification by applying the Presidential Emergency Measure No. 9 (hereinafter “Emergency Measure No. 9”) for the protection of national security and public order.

B. The Defendant and the prosecutor appealed against the above judgment to the Daegu High Court 78No797. On December 21, 1978, the above court reversed the part of the judgment of the court below against the Defendant and sentenced the Defendant to imprisonment for 8 months and suspension of qualifications for one year (hereinafter “the judgment subject to review”), and the judgment subject to review became final and conclusive on the same day as the waiver of the Defendant’s right to appeal.

C. The Defendant filed the instant petition for retrial on the ground that Emergency Measure No. 9 was unconstitutional, and this Court rendered a decision on October 31, 2014 to commence a new trial on the part of the Defendant among the judgment subject to a retrial, and the said decision on commencing a new trial became final and conclusive as it did not have a legitimate filing of an appeal within the appeal period.

2. Summary of grounds for appeal;

A. Defendant 1) There was no intention or misapprehension of legal principles to violate Emergency Decree No. 9. The Defendant’s act constitutes a case where illegality is removed and thus cannot be punished. 2) The sentence imposed by the lower court of unreasonable sentencing is too unreasonable.

B. The sentence imposed by the prosecutor by the court below is too uneasible and unfair.

3. We examine ex officio before determining the grounds for appeal by the Defendant and the prosecutor.

Emergency Decree No. 9 issued pursuant to Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the “former Constitution”) shall meet the requirements for its issuance.