유신헌법상 긴급조치권과 그에 근거한 긴급조치의 불법성

Abstract

In 1972, ‘Yushin-Regime’ was formed through constitution amendment for a prolonged president Park’s rule. The most powerful means which oppressed people’s resistance against Yushin-Regime were emergency measures based on the ‘Yushin-Constitution’. Without any prior or follow-up control, by president’s arbitrary decision, emergency clauses in Yushin-Constitution had possibilities which would brought about serious infringement of people’s fundamental rights. In this sense, emergency clauses was deviated from intrinsic limits of State emergency power. And, 9 times announced emergency measures were also illegal measures that violated constitutional general rule and fundamental rights. Emergency measure No.1, No.2(1974.1.8.) were announced, with the aim of suppressing ‘petition movement for constitutional amendment’. These measures completely prohibited any discussion related constitution, provided a trial by an emergency court-martial. Those measures and that after all announced emergency measures were infringed essential contents of freedom of people’s political expression, ‘nulla poena sine lege’, freedom of conscience, etc. Especially, It was Emergency measure No.9(1975.5.13.) that was expanded and reorganized all emergency measures by then. That measure was functioned as the most control means, maintained until death of president Park. The number of victims punished by emergency measures run into 1,140, but the final rulings are valid. So, judicial, legislative methods must prepared for liquidation of the rulings. Many legal, actual restrictions exist, but when we invalidate the effect of illegal state action and make victims regain their honor, solid democracy and the rule of law will be realized.