[Defendant] Defendant
[Applicant] Applicant
[Agent] Deoksu Law Firm, Attorney Lee Seok-tae
[Judgment of Acquittal by Reason of Amnesty] Supreme Court Decision 79Do2149, decided May 13, 1980
[Order]
The State shall pay 60,663,600 won to the Applicant.
[Reasoning]
1. Facts
The following facts may be recognized from the record.
A. The Defendant was indicted before the Seoul Criminal District Court on charges of violating the "Presidential Emergency Measure for the Safeguarding of National Security and Public Order" (hereinafter "Emergency Measure No. 9"), on the ground that between October 14, 1978 and October 16, 1978, he mimeographed, produced, and distributed 150 copies of leaflets containing content that criticized Emergency Measure No. 9.
B. In the first instance, Seoul Criminal District Court Case No. 78Gohap745, the Defendant was sentenced on May 9, 1979 to two years' imprisonment and two years' suspension of qualification, with 180 days of pre-trial detention to be credited toward the sentence of imprisonment, and he appealed. In the appellate instance, Seoul High Court Case No. 79No794, on August 8, 1979, the first-instance judgment was reversed and the Defendant was sentenced to one year's imprisonment and one year's suspension of qualification, with 180 days of pre-trial detention prior to the pronouncement of the first-instance judgment to be credited toward the sentence of imprisonment.
C. The Defendant filed a further appeal, and the Supreme Court, as the court of final appeal, issued a decision suspending the execution of detention with respect to the Defendant on November 14, 1979 (Case No. 79Cho63). Subsequently, in Case No. 79Do2149, on May 13, 1980, on the ground that "Emergency Measure No. 9 was rescinded by Presidential Announcement No. 67 on December 8, 1979, and this constitutes a case where the punishment was abolished due to a change in statutes or regulations after the commission of the crime," the Supreme Court reversed both the first- and second-instance judgments and rendered a judgment of acquittal by reason of amnesty (免訴), applying Article 326, Item 4 of the Criminal Procedure Act (형사소송법) (hereinafter, "the original judgment in this case").
D. The Defendant died on April 20, 1988, and the Applicant, one of his heirs, filed the present claim for criminal compensation pursuant to Article 26, Paragraph 1, Item 1 and Article 11 of the Act on Criminal Compensation and Restoration of Honor (형사보상 및 명예회복에 관한 법률, hereinafter "the Act"), on the ground that "there existed conspicuous grounds on which the Defendant would have been acquitted had there been no grounds for rendering a judgment of acquittal by reason of amnesty."
2. Whether the Right to Claim Criminal Compensation Has Arisen
A. Measures to Be Taken by Courts Where a Repealed or Invalidated Penal Statute Was Unconstitutional and Void from the Outset
Where a penal statute has retroactively lost its effect due to a decision of unconstitutionality by the Constitutional Court, or has been declared unconstitutional and void by a court, the court must render a judgment of acquittal pursuant to Article 325 of the Criminal Procedure Act with respect to the case in which prosecution was instituted by application of the statute in question. Furthermore, even where a penal statute has been "repealed," if such "repeal" pertains to a statute that was invalid and unconstitutional from the outset, the case falls under the ground for acquittal set forth in the first clause of Article 325 of the Criminal Procedure Act, namely, "when the act charged does not constitute a crime," and cannot be deemed to fall under the ground for a judgment of acquittal by reason of amnesty as prescribed in Article 326, Item 4 of the Criminal Procedure Act (see Supreme Court en banc Decision 2010Do5986, decided December 16, 2010).
B. Whether Emergency Measure No. 9 Was Unconstitutional
(1) Where a serious crisis occurs that cannot be dealt with by the ordinary exercise of governmental power under the constitutional order, the President's decision to exercise emergency national power in order to overcome such crisis and thereby guarantee the survival of the State is to be respected. However, such emergency national power must be exercised within the minimum limit indispensable to removing the direct cause of the crisis when the State is confronted with a grave crisis, and must conform to the constitutional requirements and limits governing its invocation. In this respect, the emergency measure power prescribed in Article 53 of the former Constitution of the Republic of Korea (before the full amendment by Constitution No. 9 on October 27, 1980; hereinafter "the Yushin Constitution") is no exception. The Yushin Constitution, in Article 53, Paragraphs 1 and 2, likewise limited the exercise of the emergency measure power to cases where there is a need for prompt measures due to "a natural disaster, calamity, or grave financial or economic crisis, or where the national security or public peace and order is or is likely to be gravely threatened."
(2) However, the content of Emergency Measure No. 9, issued on the basis of the above provision, prohibited in their entirety: "acts of fabricating and spreading rumors or distorting and disseminating facts"; "acts, by means of assembly, demonstration, or public communication media such as newspapers, broadcasting, and telecommunications, or expressive materials such as documents, pictures, and sound recordings, of denying, opposing, distorting, or criticizing the Constitution of the Republic of Korea, or of asserting, petitioning for, instigating, or propagandizing its amendment or abolition"; "assembly, demonstration, or acts of political involvement by students, excluding classes, research, or other ceremonial and non-political activities conducted under the guidance and supervision of school authorities or with the prior permission of the school principal"; and "acts of openly criticizing this Measure" (each item of Paragraph 1). It further prohibited openly disseminating, by broadcast, report, or other means, the content of any violation of the above, or producing, distributing, selling, possessing, or exhibiting expressive materials containing such content (Paragraph 2); prescribed that any person who violated this Measure, etc. would be punished by imprisonment for not less than one year, in which case a concurrent suspension of qualification for not more than ten years would be imposed, the same to apply to an attempt, preparation, or conspiracy (Paragraph 7); provided that a person who violated this Measure or a measure taken by the competent minister thereunder could be arrested, detained, searched, or subjected to seizure without a warrant issued by a judge (Paragraph 8); and provided that the competent minister could take measures such as dismissal or expulsion of the representative or head, affiliated officers or employees, faculty members, or students, or measures such as suspension of business, school closure, suspension or revocation of publication, dissolution, or closure, against a violator of this Measure, the offender's school, organization, or business entity at the time of the offense, or its representative or head (Paragraph 5). It is clear that this was intended to completely prohibit any discussion of the Yushin Constitution itself or to suppress the people's resistance to the so-called Yushin system, and therefore it exceeded the limits on the purpose of the emergency measure power. Moreover, the domestic and international political and social circumstances at the time Emergency Measure No. 9 was issued cannot be deemed to constitute an emergency situation subject to the exercise of the emergency measure power, i.e., a grave crisis of the State or a situation involving a grave threat directly affecting the security of the State. Accordingly, Emergency Measure No. 9, issued under such domestic and international political and social circumstances, lacked the very requirements prescribed in Article 53 of the Yushin Constitution.
(3) Furthermore, the content of Emergency Measure No. 9 severely restricted freedom of expression and personal liberty, which are essential elements of democracy, as well as the right to petition guaranteed under the Constitution. Notwithstanding the provisions of Article 8 of the Yushin Constitution (corresponding to Article 10 of the current Constitution), which require the State to guarantee the fundamental human rights of the people to the maximum extent, Emergency Measure No. 9 restricted the freedom of expression prescribed in Article 18 of the Yushin Constitution (corresponding to Article 21 of the current Constitution); by completely excluding the warrant requirement, it denied the principle of the rule of law and thereby restricted personal liberty as prescribed in Article 10 of the Yushin Constitution (corresponding to Article 12 of the current Constitution); it also restricted the freedom of residence prescribed in Article 14 of the Yushin Constitution (corresponding to Article 16 of the current Constitution); and by explicitly prohibiting acts of denying the Yushin Constitution or petitioning for its abolition, it restricted the right to petition prescribed in Article 23 of the Yushin Constitution (corresponding to Article 26 of the current Constitution). Moreover, Emergency Measure No. 9 prohibited all unauthorized assemblies, demonstrations, and acts of political involvement by students, and allowed the competent minister to order the expulsion of students who violated this and to take measures such as suspension of business, school closure, etc., against the school to which they belonged, thereby restricting the freedom of learning prescribed in Article 19 of the Yushin Constitution (corresponding to Article 22 of the current Constitution), while also restricting the autonomy of universities as prescribed in Article 31, Paragraph 4 of the current Constitution.
(4) As such, Emergency Measure No. 9, having failed to satisfy the requirements for its invocation and having exceeded the limits on its purpose, excessively restricted the freedoms and rights of the people and thereby infringed upon the fundamental rights of the people guaranteed under the Constitution. Accordingly, Emergency Measure No. 9 was unconstitutional and void as violative of the Yushin Constitution even prior to its rescission or loss of effect, and it must also be held unconstitutional and void in light of the current Constitution, which contains provisions guaranteeing the fundamental rights infringed by Emergency Measure No. 9 (see Supreme Court en banc Decision 2010Do5986, above).
Supreme Court en banc Decision 77Mo19, decided May 13, 1977, Supreme Court Decision 78Do813, decided May 23, 1978, Supreme Court Decision 78Do2071, decided September 26, 1978, and Supreme Court Decision 79Do2142, decided October 30, 1979, all of which held to the effect that Emergency Measure No. 9, based on Article 53 of the Yushin Constitution, was constitutional, as well as Supreme Court Decision 79Do2391, decided December 28, 1979, which rendered a judgment of acquittal by reason of amnesty on the ground that the rescission of Emergency Measure No. 9 constituted a change in statutes or regulations, and all other Supreme Court judgments taking a view different from that of this decision, are hereby overruled.
C. Arising of the Right to Claim Criminal Compensation
Emergency Measure No. 9, which was the statute applicable to the charged facts against the Defendant and the premise of the judgment of acquittal by reason of amnesty, must be held to have been unconstitutional and void from the outset. Where prosecution is instituted through the application of an unconstitutional and void Emergency Measure No. 9 in this manner, this falls under "when the case charged does not constitute a crime" under the first clause of Article 325 of the Criminal Procedure Act, and the court should have rendered a judgment of acquittal (see Supreme Court en banc Decision 2010Do5986, above).
However, considering the circumstances and reasons under which the Defendant received the judgment of acquittal by reason of amnesty, the circumstance that, because the court at the time of the original judgment in this case refrained from conducting judicial review of Emergency Measure No. 9, a person indicted for its violation had no means of contesting the unconstitutionality of Emergency Measure No. 9 in the course of the trial proceedings, together with the effect of Emergency Measure No. 9 as discussed above and the measures to be taken by a court where a repealed penal statute was unconstitutional and void from the outset, it must be held that it was only by this decision's declaration of the unconstitutionality and invalidity of Emergency Measure No. 9 that there arose, for the Defendant, conspicuous grounds on which he would have been acquitted had there been no grounds for rendering a judgment of acquittal by reason of amnesty.
Accordingly, the Applicant, as the Defendant's heir, may claim compensation from the State, pursuant to Article 26, Paragraph 1, Item 1, Article 3, Paragraph 1, and Article 11 of the Act, for the detention suffered by the Defendant as a result of his violation of Emergency Measure No. 9.
3. Scope of the Criminal Compensation
Article 5, Paragraph 1 of the Act and Article 2 of the Enforcement Decree of the Act provide that the lower limit of compensation per day for pre-trial detention shall be the daily minimum wage under the Minimum Wage Act (최저임금법) for the year in which the cause of the claim for compensation arose, and the upper limit shall be five times such daily minimum wage.
Since the daily minimum wage under the Minimum Wage Act for the year 2013, in which this decision falls, is 38,880 won, the lower limit of compensation is 38,880 won per day, and the upper limit is 194,400 won per day (=38,880 won × 5). Taking into account the type and length of detention appearing in the record of this case, the property loss suffered and profits lost by the Defendant during the period of detention, or the mental suffering and physical harm sustained, the presence or absence of intent or negligence on the part of the police, prosecution, and court authorities, and all other circumstances relevant to the calculation of the amount of compensation, it is appropriate to determine the amount of compensation for the Applicant, with respect to 369 days [=180 days (the number of days of pre-trial detention prior to the pronouncement of the first-instance judgment actually credited toward the sentence of imprisonment) + 189 days (the number of days from May 10, 1979, the day following the pronouncement of the first-instance judgment, to November 14, 1979, the date of the decision suspending the execution of detention)], being the number of days of detention sought by the Applicant out of the Defendant's total number of days of detention, at the rate of 164,400 won per day sought by the Applicant, within the limits of the statutory amount of compensation. Accordingly, the amount of criminal compensation for the Applicant is determined to be 60,663,600 won (=164,400 won per day × 369 days).
4. Conclusion
Accordingly, this claim for criminal compensation is hereby granted, and it is so decided as set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Chief Justice Yang Sung-tae (Presiding Justice), Justice Yang Chang-soo, Justice Shin Young-chul, Justice Min Il-young, Justice Lee In-bok, Justice Lee Sang-hoon (Justice in Charge), Justice Park Byong-dae, Justice Kim Yong-deok, Justice Park Bo-young, Justice Ko Young-han, Justice Kim Chang-seok, Justice Kim Shin, Justice Kim So-young