2011Violation of Inventory 10 Presidential Emergency Decree No. 9

A person shall be appointed.

Defendant

The highest public trial (public trial)

Law Firm 00, Attorney 000

Law Firm 00, Attorney 000

Law Firm 00, Attorneys 000,000

Law Firm 00, Attorney 000

Seoul Criminal Court Decision 77Gohap489 delivered on September 28, 1977

May 23, 2013

The defendant shall be innocent.

The summary of the judgment of innocence against the accused shall be published.

1. According to the summary of the facts charged and the records of the case, the following facts are recognized.

A. The summary of the facts charged against the defendant (1) is a student attending the above 00 university economics and the defendant set up the anti-government terms that were frequently used at the defendant's night room from April 16, 197 to July 17, 197 to 100, and set up the leaflet of the unsatisfy in 00 and spread it in the school, and two copies of the plaintiff's 2, "F 00," under the title of "F 1, 300, 100, 300, 100, 100, 300,000, 100,000, 300,000, and 10,000,000: 20,000,000,000,000,000,000,000,000,000,00,000,00,00.

B. In the case of the judgment of conviction and the final Seoul District Criminal Court on September 28, 1977, the judgment of conviction against the defendant and the final Seoul District Criminal Court found the defendant guilty, and sentenced the defendant to one year and six months of imprisonment and one year and six months of suspension of qualification (hereinafter referred to as "the judgment subject to a retrial") and the defendant appealed to Seoul High Court 77No1623 on December 15, 197, but the appellate court sentenced that the defendant dismissed the defendant's appeal on December 15, 197, while the defendant filed an appeal to the Supreme Court 78Do31 on March 14, 197, the judgment of the retrial of this case became final and conclusive by dismissing the appeal on March 14, 1978.

C. Specific details of Emergency Measure No. 9 applied to the Defendant’s act are as follows:

First, Article 9(7) of the Emergency Measures Act provides that a penal provision on the Defendant’s act is subparagraph 9(7) of the Presidential Emergency Measures Act, and the content thereof is. The person who violates this measure or the measures taken by the competent Minister is punished by imprisonment with prison labor for not less than one year. In this case, suspension of qualifications for not more than ten years shall be concurrently imposed. The same shall also apply to attempts. Second, Article 9(1) of the Emergency Measures Act provides that “the act of making, distributing, or distributing through distorted facts” is “the act of openly violating the Constitution of the Republic of Korea by means of public radio waves, such as assembly, demonstration, newspaper, broadcast, drawing, communication, etc.” and Paragraph 1(b) provides that “the act of openly participating in the production, dissemination of, or distorting or distorting of, the Constitution of the Republic of Korea by means of an assembly, demonstration, broadcast, communication, etc., or by asserting, petitioning, instigating or distorting the amendment or abolition thereof.”

2. The Supreme Court, on April 18, 2013, declared that Emergency Measure No. 9(1) was unconstitutional for the following reasons in the case of 2011 early 689, April 18, 2013.

① 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 ensure 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 conform to the requirements and limits for exercising the constitutional power under Article 53 of the former Constitution (wholly amended by Act No. 9 of Oct. 27, 1980; hereinafter referred to as the “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 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 shall also be limited to “in the event of a natural disaster, serious financial or economic crisis, or serious threat or threat of public safety and order.”

② However, it is clear that the Emergency Measure No. 9 issued based on the Emergency Measure No. 9 is completely prohibited from the discussion of the new Constitution itself or is aimed at suppressing people’s resistance against the so-called physical agents, and it does not exceed the limit for the purpose of emergency measures. Moreover, it cannot be said that the domestic and foreign political situation and social situation at the time of the issuance of Emergency Measure No. 9 are the emergency situation subject to the exercise of emergency measures, which may cause a serious threat to the national crisis or national security. Thus, the Emergency Measure No. 9 issued in such domestic and foreign political situation and social situation lack the requirements of Article 53 of the new Constitution.

③ In addition, the contents of Emergency Measure No. 9 are seriously restricting the freedom of expression or 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), Emergency Measure No. 9, which restricts the freedom of expression as stipulated in Article 18 (Article 21 of the current Constitution) of the current Constitution, and completely excludes the warrant requirement, limits the freedom of body as stipulated in Article 10 (Article 12 of the current Constitution) of the current Constitution by denying the principle of a constitutional state, and limits the freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution) of the current Constitution. Furthermore, Emergency Measure No. 9 restricts the right to petition as stipulated in Article 23 (Article 26 of the current Constitution) of the current Constitution, which prohibits any assembly or demonstration of students who have not been permitted and any actions to temporarily close the school, and Article 23 (1) of the current Constitution provides for the current Constitution No. 9).

④ As such, Subparag. 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 triggering requirements. Before the Emergency Decree No. 9 was rescinded or invalidated, it is unconstitutional and invalid due to its violation of the Act, and further, it is unconstitutional and invalid even in light of the current Constitution that provides for the protection of the fundamental rights infringed by the Emergency Decree No. 9. (2) The Constitutional Court rendered a decision on the unconstitutionality of Emergency Decree No. 9 in the case of 2010Hun-Ba70, 132 and 170 (merger) decided on March 21, 2013.

3. Measures to be taken by a court where the repealed or invalidated penal-related Acts and subordinate statutes are unconstitutional or invalid from the beginning.

In a case where a penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared unconstitutional or null and void, the court shall, pursuant to Article 325 of the Criminal Procedure Act, render a not-guilty verdict for a prosecuted case against which a public prosecution was instituted by applying the pertinent statutes (see Supreme Court en banc Decision 2010Do5986, Dec. 16, 201

4. Conclusion

Thus, the facts charged of this case constitute "where the defendant's case was not committed as a crime since the Emergency Measure No. 9, which is the applicable law, was unconstitutional or invalid from the beginning," and thus, the defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is announced in accordance with Article 440 of the

In addition, under the past authoritative regime of the Republic of Korea, the judicial branch did not play a role as the last king of human rights, and thus, the defendant who suffered a great pain as a member of the judicial branch is deep as a member of the judicial branch, and the judgment of the review of this case will be flador and will be an opportunity for the defendant to recover honor.

Justices Kim Jong-soo

Judicial History; and

Judges Kim Gin-sus