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| TITLE | Supreme Court en banc Decision 2010Do5986 Decided December 16, 2010【Violation of the Presidential Emergency DecreeㆍViolation of the Anti-Communist Act】 [full Text] |
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| Summary | |
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[1] Where a repealed or invalidated penal law and subordinate statutes are unconstitutional or invalid in the first place, the measure the court should take on a case where a defendant is indicted pursuant to such a law and subordinate statutes (i.e., judgment of acquittal), and in such a case, whether it is possible to take an appeal from a judgment pronouncing an exemption from indictment (instead of an outright acquittal) (affirmative) [2] Whether the so-called “sovereign act of the state” with a high-degree of political nature can be subject to judicial review [3] Meaning of “the law” subject to the Constitutional Court’s review of unconstitutionality, and the institution to conduct the final review of unconstitutionality of the “Presidential Emergency Decree” based on Article 53 of the so-called Yusin Constitution (i.e., Supreme Court) [4] Whether the “Presidential Emergency Decree No.1” based on Article 53 of the so-called Yusin Constitution is invalid for unconstitutionality (affirmative) [5] Of the judgment below pronouncing an exemption of indictment on charges of violation of Emergency Decree No.1 paragraphs (5), (1), and (3), on grounds that the charges were raised by applying unconstitutional or invalid laws, the case reversing the part of the judgment below and the judgment of the first instance on fabrication and distribution of wild rumors on the ground of error by misapprehension of legal principles, and pronouncing an outright acquittal |
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