찬양고무죄의 재심

Abstract

This article is a proposal to remedy the abuses of the National Security Act called the Makgeolli Security Act. On the one hand, a number of courts initiated recently the retrials on the grounds of Art. 420 Subparagraph 7 of the Criminal Procedure Act (crime of the officials engaged in the investigation and trial) and acquitted the defendants of the politically suggestive praise & incitement(§7 of National Security Act). On the other hand, despite the same substance of the action, the defendants who cannot prove the grounds for retrial under Art. 420 Subparagraph 7 have not crossed the threshold of retrial. treating similar cases of misuse of the National Security Act differently depending on whether or not there is a reason for retrial specified in Art. 420 Subparagraph 7 of the Criminal Procedure Act is regarded as an serious infringement of the right to equality in damage relief. The author tries to construe the purpose of the Constitutional Court's limitative constitutional decision in 1990 and the legislative objective of revising the National Security Act in 1991 into the rechtsstaatliche reason for retrial to allow the retrials even for the defendants who do not have or cannot prove the reasons for the retrial. The Supreme Court’s or the Constitutional Court's declaration or decision of simple unconstitutionality of acts or decrees has become an important channel for retrial relating to the past political trials. However, the limitative constitutional decision itself was not recognized as a reason for retrial. In order to justify the limitative constitutional decision and the revision of the National Security Act as the reason for retrial, their purposes should be normatively transformed into the rechtsstaatliches moment and also the legally forbidden and permitted areas of politically suggestive praise & incitement must be able to semantically be distinguished.