Supreme Court Plenary Session to Decide Today on the Legality of Emergency Measure No. 9... Attention on Whether the Verdict from 7 Years Ago Will Be Overturned

Supreme Court, Seocho-dong, Seoul.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court's final ruling on the state's liability for illegal acts concerning those detained or convicted for violating Emergency Measure No. 9, which was proclaimed during the Park Chung-hee Yushin regime, will be announced on the 30th.

Attention is focused on whether the Supreme Court will change its stance, which in 2013 ruled Emergency Measure No. 9 unconstitutional and invalid, but in 2015 denied civil liability for illegal acts on the grounds that the president's exercise of emergency powers is a highly political act.

The Supreme Court's full bench (presiding Justice Kim Jae-hyung) will hold a hearing in the afternoon on the appeal trial for damages claims filed by individuals detained or convicted for violating Emergency Measure No. 9, as well as their families and heirs.

The plaintiffs in this case are individuals who were arrested and detained or prosecuted and convicted for violating Emergency Measure No. 9 in the 1970s, or their heirs.

Emergency Measure No. 9, enacted and proclaimed in May 1975, prohibited acts such as denying, opposing, distorting, or defaming the Yushin Constitution, advocating, petitioning, inciting, or propagandizing for its amendment or abolition, and students' involvement in political assemblies and demonstrations. Violations were punishable by imprisonment of one year or more.

In 2013, the Constitutional Court ruled Emergency Measure No. 9 unconstitutional, stating, "It lacks legitimacy in legislative purpose and appropriateness in method, violates the principle of legality, and excessively restricts or infringes upon citizens' fundamental rights such as suffrage related to the exercise of constitutional amendment power, freedom of expression, freedom of assembly and demonstration, the warrant principle and personal liberty, and academic freedom, thus violating the Constitution."

In the same year, the Supreme Court also ruled, "Emergency Measure No. 9 not only lacked the requirements stipulated in Article 53 of the Yushin Constitution, which was the basis for its issuance, but also seriously restricted essential elements of democracy and citizens' fundamental rights guaranteed by both the Yushin Constitution and the current Constitution, including freedom of expression, the warrant principle and personal liberty, freedom of residence, petition rights, and academic freedom, thus it is unconstitutional and invalid."

As a result, victims were acquitted through retrials and received criminal compensation according to court decisions. Subsequently, in September 2013, the victims filed a lawsuit against the state claiming damages for illegal acts, citing material and psychological harm caused by Emergency Measure No. 9.

However, in 2015, the Supreme Court denied the government's liability for damages, stating, "The president's exercise of emergency powers based on the Yushin Constitution is a highly political state act, subject to political responsibility, and cannot be considered a civil illegal act in relation to individual citizens."

Although the Supreme Court denied the government's liability for damages arising from the enforcement of Emergency Measure No. 9, some lower courts have issued rulings contrary to the Supreme Court's conclusion.

The plaintiffs in this case argue primarily that the president's issuance of Emergency Measure No. 9 itself was illegal and constituted an illegal act, and alternatively claim that the investigative agencies' acts of arresting and detaining suspects without warrants, conducting investigations, and filing indictments, as well as judges' judicial acts sentencing guilty verdicts applying Emergency Measure No. 9, constitute civil illegal acts under the Civil Act, thus filing a damages claim lawsuit.

They claim that the state is responsible for compensating lost income (loss of earnings) and consolation money to the directly affected individuals, and consolation money to the other plaintiffs such as family members.

However, both the first and second trials rejected the plaintiffs' claims, citing existing Supreme Court rulings.

Even though Emergency Measures were later declared unconstitutional and invalid by courts, the president's exercise of emergency powers based on the Yushin Constitution is a highly political state act, and the president is primarily politically responsible to the entire nation, not legally obligated to individual citizens. Therefore, such exercise of power cannot be considered a civil illegal act in relation to individual citizens.

Furthermore, the investigative agencies' acts of arresting and detaining suspects without warrants, conducting investigations, and filing indictments, as well as judges' judicial acts sentencing guilty verdicts applying Emergency Measure No. 9, were not considered illegal acts by public officials due to the provision in Article 53, Paragraph 4 of the Yushin Constitution stating that "Emergency measures under Paragraphs 1 and 2 shall not be subject to judicial review," and since Emergency Measure No. 9 had not yet been declared unconstitutional and invalid, it was difficult to regard these acts as intentional or negligent illegal acts by public officials.

The Supreme Court, which received the case in February 2018, referred it to the full bench and has been conducting hearings.

This content was produced with the assistance of AI translation services.