4.Case on Determination of Pro-Japanese and Anti-National Activities

[23-1(A) KCCR 258, 2008Hun-Ba111, March 31, 2011]

In this case, the Constitutional Court held constitutional Article 2, Item 7 and Item 19 (hereinafter, the "Instant Provisions") of the 'Special Act on Investigation of Anti-National Activities during Japanese Occupation' (hereinafter, the "Special Act") which define, as a type of pro-Japanese and anti-national activities, the act of receiving the title of nobility for contribution to Japanese annexation of Korea, or passing on the title; or the act of conspicuously collaborating with Japanese colonialism by a person who received reward or recognitionfor his or her collaboration in the Japanese colonial rule and invasive war.

Background of the Case

The Commission for the Investigation of Pro-Japanese and Anti-National Activities (hereinafter, the "Commission") decided the fact that complainant's great-grandfather had been conferred the title ofbaron and had received a reward of Eunsagongche, a kind of governmentbond with huge interest income, and a commemoration medal of Japanese annexation of Korea for his contribution, shall be determined as pro-Japanese and anti-national activity. In response, the complainant filed a suit with the Seoul Administrative Court to vacate such decision and thereafter moved that court to request constitutionalreview on the constitutionality of the Instant Provisions. Upon dismissal,the complainant filed this constitutional complaint.

Provision at Issue

The Special Act on Investigation of Anti-National Activities during Japanese Occupation (revised by Act No. 7939 on April 28, 2006)

Article 2 (Definition)

For the purpose of this Act, the term of "Pro-Japanese and Anti-National Activities" means activities which falls into one of the

following acts committed during the period from the outbreak of the Russo Japanese war, which was the beginning of Japanese invasion into Korea, till August 15, 1945:

7.Receiving the title of nobility for contribution to Japanese annexation of Korea or the acts of passing on such title;

19.Conspicuously collaborating with Japanese colonialism by a person who received reward or recognition for his or her collaboration in the Japanese colonial rule and invasive war

Summary of Decision

In a 7 (constitutional) to 1 (unconstitutional) vote, the Constitutional Court held that the Instant Provisions are not against the Constitution.

1. Opinion of the Court

While the Instant Provisions seem to somewhat influence the public's evaluations on the person subject to investigation and restrict the right to personality of the bereaved, the Special Act including the Instant Provisions–through the process of democratic public debate and in accordance with public opinion–was enacted to ensure that the truth in our country's history and national legitimacy be brought to light and placed on formal record. In addition, we find that the legislature gave careful consideration in defining the term of 'Pro-Japanese and Anti-National Activities' to mean receiving the title of nobility 'for contribution to the Japanese annexation of Korea' or 'substantively supporting the Japanese Occupation', rather than simply receiving such title or rewards from the Japanese colonial government. Furthermore,measures to minimize disadvantages on the person subject to investigationare designed in the Special Act, not to mention that there is no provision requiring any disadvantageous treatment of such person or his/her descendants. For the foregoing reasons, we conclude that the Instant Provisions do not infringe on the petitioner's right to personality in violation of the rule against excessive restrictions.

Besides, the Instant Provisions simply define the term of 'Pro-Japanese and Anti-National Activities' and the Special Act as a

whole was enacted to bring historical truth to light by making a report and disclosing such report to the public thereafter rather than to define disadvantages on Japan collaborators or their descendants. Therefore, the Instant Provisions or the Commission's decisions on the 'Pro-Japanese and Anti-National Activities' under the Instant Provisions can be considered neither to recognize or establish a privileged class violating Article 11, Section 2 of the Constitution nor to violate the principle against passing on honors to descendants under Article 11, Section 3 of the Constitution, which states that 'the awarding of an honor or a medal in any form shall be effective only for recipients and no privileges shall be ensue therefrom.' Moreover, the InstantProvisions or the Committee's decisions in accordance to those provisionscan be regarded to violate neither the rule against retroactive legislationunder Article 13, Section 2 of the Constitution nor the principle against guilt by association under Article 13, Section 3 of the Constitution prohibiting unfavorable treatment to a person on account of an act not of his own doing but committed by a relative.

2. Dissenting Opinion of One Justice

The determination and revelation by the State of the fact that a person engaged in pro-Japanese and anti-national activities should be considered as an act of imposing punishment by officially damaging an individual's reputation. Such penalty can be a kind of punishment within the meaning of Article 13, Section 1 of the Constitution, violating the rule against retroactive legislation prescribed on the same section of the Constitution. Furthermore, such punishment described in the Special Act is against the principle of double jeopardy articulated in Article 13, Section of the Constitution because, in this case, thegovernment, without having any applicable provision of the Constitution,is trying to punish Pro-Japanese collaborators again simply because the punishment imposed in the past was not enough, although the government punished Pro-Japanese collaborators according to Article 101 of the Constitution version of 1948.