In a case where: (a) the Defendant was convicted of violating the Presidential Emergency Decree (Emergency Measure No. 9) for the Protection of National Security and Public Order (Emergency Measure No. 9) and the charges of violating the former antipublic law, and the retrial was commenced on the grounds that there was a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act on the part of violation of the Emergency Measure No. 9 in the final judgment above, on the grounds that there was a ground that there was a ground for retrial under Article 420 subparag. 5 of the Criminal Procedure Act on the part of violation of the Emergency Measure No. 9 of the above final judgment, which led to the government’s failure to collect taxes and the government’s failure to make efforts

In a case where: (a) the Defendant was convicted of a violation of the Presidential Emergency Decree for the Protection of National Security and Public Order (hereinafter “Emergency Decree No.9”) and the former Antipublic Act (amended by Act No. 3318, Dec. 31, 1980; hereinafter the same) committed a violation of Article 420 subparag. 5 of the Criminal Procedure Act; and (b) retrial was commenced on the grounds that there was a ground that there was a cause for retrial on the part of violation of Article 420 subparag. 9 of the said final judgment, among the facts charged, the first violation of Emergency Decree No. 9 of the said final judgment constitutes unconstitutional and void since the Emergency Decree No. 9 of the said final judgment does not constitute a violation of the first unconstitutionality and invalidation; and (c) the Defendant’s act constitutes a violation of Article 9 of the former Public Act; and (d) the first violation of the Emergency Decree No. 9 of the said final judgment constitutes a violation of the first one of the facts charged; and (d) the first violation of the former Public Act cannot be deemed as grounds for retrial.

Articles 8 (see Article 10 of the current Constitution), 10 (see Article 12 of the current Constitution), 14 (see Article 16 of the current Constitution), 18 (see Article 21 of the current Constitution), 19 (see Article 22 of the current Constitution), 23 (see Article 26 of the current Constitution), 53 (see Article 26 of the current Constitution), Article 31 (4) of the current Constitution, Article 67 of the Presidential Emergency Decree for the protection of national safety and public order (see Article 67 of the Presidential Emergency Decree No. 9 of October 27, 1980), Article 10 (see Article 12 of the current Constitution), Article 14 (see Article 16 of the current Constitution), Article 18 (see Article 21 of the current Constitution), Article 29 (see Article 21), Article 23 (2), Article 31 (4), Article 31 (7) of the current Constitution, Article 40 (1) and (3) of the National Security Act, Article 405 (4) (2) and (4) of the current Act)

The deceased Defendant

The Prosecutor's Name

Long-term Reserve

Attorney Kwon Young-hoon

Daegu District Court Decision 75Gohap39 delivered on February 25, 1976

The defendant shall be innocent.

The summary of this decision shall be published.

1. Summary of the facts charged

The summary of the facts charged in the instant case is as follows: “The Defendant, while drunkd in the Glang-gun of Doldong-dong, Doldong-dong, Doldong-dong, on October 14, 1975, provided that the present government collected taxes from police officers working and did not make efforts for the unification of South and North Korea, and, at the same time, embling and distributing a will secret with North Korea as he/she was well-known and helps North Korea to act in harmony with the unification of enemy-gun, and thus, constitutes an anti-government organization.”

2. Case progress

According to the records, the following facts can be acknowledged.

A. In the Daegu District Court Decision 75Ra339 delivered on February 25, 1976, the court found the Defendant guilty of the charges, and sentenced the Defendant to 10 months of imprisonment and suspension of qualification for one year by applying the Presidential Emergency Measures for the National Security and the Protection of Public Order (hereinafter “Emergency Measures No. 9”) (amended by Act No. 3318 of December 31, 1980) and Article 4(1) of the former Antipublic Act (amended by Act No. 3318 of December 31, 1980; hereinafter “former Antipublic Act”).

B. The Defendant and the Prosecutor appealed to the Daegu High Court 76No327 on June 24, 1976, but the appellate court dismissed all the appeals filed by the Defendant and the Prosecutor on June 24, 1976. The judgment subject to a retrial became final and conclusive on the 25th of the same month.

C. On December 29, 2017, the prosecutor filed a request for retrial pursuant to Article 424 subparag. 1 of the Criminal Procedure Act, asserting that “The Emergency Measure No. 9 is unconstitutional or invalid, and there is any ground for retrial stipulated in Article 420 subparag. 5 of the Criminal Procedure Act in the judgment subject to a retrial based on which a conviction was rendered.” On March 27, 2018, this court rendered a request for retrial pursuant to Article 424 subparag. 1 of the Criminal Procedure Act, deeming that there exists any ground for retrial as to the violation of Emergency Measure No. 9 among the judgment subject to a retrial, the entire judgment subject to a retrial becomes subject to a decision to commence

3. Determination

A. Violation of Emergency Measure No. 9

1) unconstitutionality of Emergency Measure No. 9

In the event of a serious crisis that is unable to be dealt 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 the exercise of the constitutional power under Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter “former Constitution”). In this respect, the emergency power 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”) shall not be an exception. Article 53(1) and (2) of the former Constitution of the Republic of Korea limits the exercise of the emergency power to “when it is necessary to overcome a serious financial or economic crisis, or to ensure national security or public peace and order.”

However, the contents of the Emergency Measure No. 9 issued based on the above are as follows: “Act of public propagation, such as assembly, demonstration, newspaper, broadcasting, telecommunications, drawing, or sound records,” “act of denying, opposing, duplicating, or disturbing the Constitution of the Republic of Korea by means of public radio waves, such as documents, drawings, or telecommunications, or for the modification or abolition thereof; “an act of publicly harming the student’s assembly, demonstration, or political participation” or “an act of openly excluding other ordinary non-political activities” or “an act of openly harming the student’s assembly, demonstration, or political participation” or “an act of openly excluding other classes and non-political activities conducted under the guidance or supervision of the school authority,” and “an act of openly spreading the contents thereof by means of broadcast, news, or producing, distributing, selling, possessing, or displaying representations of the contents thereof,” “an act of violating the Constitution of the Republic of Korea or the head of the school shall be punished by imprisonment for a limited period of not less than 1 year; if such an act of violating the State or a person who violates the foregoing provision shall not be subject to the foregoing.

In addition, the contents of Emergency Measure No. 9 are seriously restricting the freedom of expression and the freedom of body and the right to petition guaranteed by the Constitution, which are the essential elements of democracy, so that the State may guarantee the fundamental human rights of the people as much as possible, notwithstanding the provisions of Article 8 (Article 10 of the current Constitution), Article 18 (Article 21 of the current Constitution), Article 10 (Article 12 of the current Constitution), which restricts the freedom of body as stipulated in Article 14 (Article 16 of the current Constitution), and Article 23 (Article 26 of the current Constitution) of the current Constitution, which limits the freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution), and Article 23 (Article 26 of the current Constitution) of the current Constitution. Moreover, Article 9 of the current Constitution, which restricts the freedom of assembly or demonstration of students and the right to petition for abolition of the current Constitution, and Article 23 (Article 16) of the current Constitution, which regulates the freedom of religion and demonstration of students who violated this provision, Article 14 (3) of the current Constitution.

The Emergency Measure No. 9, supra, 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. Therefore, prior to the cancellation or invalidation of Emergency Measure No. 9, this is unconstitutional and invalid as it is in violation of the due diligence Constitution. Furthermore, in light of the current Constitution that has the provisions guaranteeing the fundamental rights infringed by Emergency Measure No. 9, it is clear that it is unconstitutional and invalid (see Supreme Court en banc Order 2011Hun-Ba689, Apr. 18, 2013; Constitutional Court en banc Order 2010Hun-Ba70, 132, 170, Mar. 21, 2013).

2) Measures to be taken by the court where the repealed or invalidated penal laws were unconstitutional or invalid from the beginning.

In a case where the penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared that the punishment was unconstitutional or invalid, the court shall render a verdict of innocence to the accused case, which was instituted by applying the pertinent statutes, pursuant to Article 325 of the Criminal Procedure Act. Furthermore, even if the penal law was repealed, if the “definite” was against the statutes which were unconstitutional and invalid since the first violation of the Constitution, then the accused case constitutes a ground for innocence (see, e.g., Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010).

3) Sub-determination

Therefore, the violation of Emergency Measure No. 9 among the facts charged in the instant case constitutes a case where Emergency Measure No. 9 is deemed unconstitutional and invalid from the beginning to the effect that it does not constitute a crime.

B. Violation of the former Anti-Public Law

1) Scope of adjudication on commercial concurrent crimes and retrial

As seen earlier, the facts charged in the instant case pertains to the following facts: “The Defendant’s remarks made to police officers to praise and capture the words of will, and at the same time praise and concert North Korea, thereby benefiting anti-government organizations.” The Defendant’s acts constitute several crimes (a crime of violating Emergency Measure No. 9 and a crime of violating the former Anti-Public Law).” Although several crimes were realized as one act, the ordinary concurrence is only one act, and only one act is an act of concurrent crimes.

However, a new trial is an emergency remedy procedure that correctss the unreasonable fact-finding with respect to a final judgment of conviction, and the new trial court does not initiate a new trial with respect to “legal assessment” as to the facts of the final judgment, but rather does not initiate a new trial. Likewise, this court’s commencement of a new trial with respect to the above facts charged against the Defendant cannot be deemed to have commenced a new trial as to the legal assessment of violation of Emergency Decree No. 9.

The Supreme Court rendered that “where it is deemed that there are grounds for a retrial only for a part of the facts constituting a crime among the final and conclusive judgments that found guilty of several concurrent crimes, the retrial court shall not reverse the conviction through a new trial on the part of the facts constituting a crime without any grounds for retrial (see, e.g., Supreme Court Decision 2001Do1239, Jul. 13, 2001).” The purport of the above Supreme Court ruling is that where a new trial is commenced on the grounds that there are grounds for retrial for a part of the facts constituting a crime in a substantive concurrent relationship, the decision to commence a new trial on the part of the facts constituting a crime in a formal concurrent relationship is against the judgment on which one sentence is rendered, and that there is no ground for new trial on the sentencing of the facts constituting a crime in a different criminal without any grounds for new trial on the sentence, it shall be interpreted strictly as a case in a relationship of substantive concurrent crimes, and where only a single criminal offense is realized and its legal evaluation is different, the above legal doctrine cannot be applied as it is.

Ultimately, even if the Defendant’s act is deemed to constitute a violation of Emergency Measure No. 9 and at the same time, insofar as the court has commenced a retrial on the facts charged of this case, it cannot be deemed that the scope of said trial is limited to only the violation of Emergency Measure No. 9, which determined that the scope of said trial had the initial grounds for retrial. Therefore, it is reasonable to deem that this court may also deliberate on the substantive determination of the facts regarding the crime of

2) Specific determination

A) The crime of Article 4(1) of the former anti-public law is established when an act of pro-government organization or its members, or an act of pro-government organization acting in concert with, or acting in concert with, an anti-government organization or in any other way. However, for the purpose of applying it, it requires that the content of the act should objectively be the benefit of an anti-government organization, and subjectively be the benefit of an anti-government organization (see Supreme Court Decision 82Do2658, Feb. 22, 1983).

In addition, unlike Article 7(1) of the current National Security Act amended by Act No. 4373, May 31, 1991, Article 4(1) of the former Anti-Public Act does not separately stipulate the requirement that “it shall endanger the existence and security of the State or democratic fundamental order.” However, even if there is no express legal requirement, the above provision is unconstitutional due to the diversity of the legal text and the fluority of the scope of its application, and thus, it is reasonable to interpret that Article 4(1) of the former Anti-Public Act applies only to cases where there is an obvious risk that may endanger the national existence and security or endanger the free democratic basic order (see, e.g., Seoul High Court Decision 2009Reno19, Apr. 30, 2010).

B) According to the evidence submitted by the prosecutor, the fact that the defendant made a statement as stated in the facts charged in the instant case is recognized.

However, examining the Defendant’s statement stated in the above facts charged, it appears that the Defendant appears to have been aware of the Defendant’s subjective perception that it was harmful to anti-government organizations, in light of the following: (a) the Defendant’s statement to the effect that it would objectively benefit an anti-government organization; (b) would endanger the existence and security of the State; or (c) would pose a specific and apparent danger that would endanger the free democratic fundamental order. Furthermore, in view of the fact that the Defendant stated that “the Defendant did not speak as to North Korea at the time of interrogation of the prosecution (see, e.g., record of evidence, 55 pages),” the Defendant did not appear to have been aware of the fact that it was harmful to anti-government organizations; and (d)

Therefore, among these facts charged, the violation of the former Antipublic law constitutes a case where there is no proof of criminal facts.

4. Conclusion

Of the facts charged in this case, the violation of the Emergency Decree No. 9 among the facts charged in this case constitutes cases where the Emergency Decree No. 9, which is the applicable law, is unconstitutional and invalid from the beginning to the beginning, and does not constitute a crime. The violation of the former Anti-Public Act constitutes cases where there is no proof of criminal facts. Therefore, the defendant is acquitted pursuant to Article 325 of the Criminal Procedure Act, and the summary of the judgment against

Judge Sho-ho (Presiding Judge)