207 No. 1221 Request for adjudication on the constitutionality of a law

00

oly 31, 2007

With respect to the following cases, an adjudication on the constitutionality of Article 2 subparagraph 9 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule is requested.

G. The revocation of the disposition to revoke the decision of 2006Guhap45371 pro-Japanese

Plaintiff 00

The Defendant-General Committee for Finding the Truth of the Anti-National Acts

1. Summary of the motion of this case

According to the records, the following facts are recognized.

A. The deceased 00 was born on June 6, 1853 and died on December 17, 193, and the applicant is an son of 00.

B. On May 8, 2006, the Committee for Finding the Truth of Anti-National Acts established pursuant to the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (hereinafter referred to as the "Special Act") was selected as a person subject to investigation of anti-national acts on May 23, 2006 pursuant to Article 19 of the Special Act and notified the applicant on June 23, 2006.

C. The applicant filed an objection with the Committee on August 22, 200, the Committee dismissed the applicant’s objection on September 11, 2006, based on the results of the investigation conducted under a special Act, and made a decision on September 18, 2006 to determine the following acts of OO as pro-Japanese under Article 28 of the Special Act (hereinafter “instant decision”), and notified the applicant of the results of the investigation conducted on September 18, 2006.

( 1 ) 특별법 제2조 제18호 ( 동양척식주식회사 또는 식산은행 등의 중앙 및 지방조직 간부로서 우리민족의 재산을 수탈하기 위한 의사결정을 중심적으로 수행하게나 그 집행을 주도한 행위 ) 와 관련하여 ( 가 ) 동양척식주식회사 설립위원 및 감사로 활동 ( 1908 ~ 1925 ) ( 나 ) 조선식산은행 설립위원으로 활동 ( 1918 ) ( 다 ) 산업조사위원회 위원 역임 ( 1921. 9. ~ 1924. 12. ) ( 2 ) 특별법 제2조 제13호 ( 사회 · 문화 기관이나 단체를 통하여 일본제국주의의 내선 융화 또는 황민화운동을 적극 주도함으로써 일본제국주의의 식민통치 및 침략 전쟁에 적극 협력한 행위 ) 와 관련하여 ( 가 ) 대정실업친목회 부회장으로 활동 ( 1916 ~ 1921 ) ( 나 ) 동민회 상담역으로 활동 ( 1924 ) ( 3 ) 특별법 제2조 제9호 ( 조선총독부 중추원 부의장 · 고문 또는 참의로 활동한 행위 ) 와 관련하여 ( 가 ) 중추원 참의 역임 ( 1928 ~ 1933 ) ( 4 ) 특별법 제2조 제19호 ( 일본제국주의의 식민통치와 침략전쟁에 협력하여 포상 또는 훈공을 받은 자로서 일본제국주의에 현저히 협력한 행위 ) 와 관련하여 ( 가 ) 메가타 ( 目賀田種太郎 ) 의 화폐 재정정리사업에 협조하여 1913년 한국병합기 념장 받음 ( 나 ) 1924년 훈6등으로 서훈받음 ( 다 ) 1928년 훈5등 서보장 받음 ( 라 ) 1928년 대례서위서훈 시 금배 1조 받음 ( 마 ) 1929년 훈4등 서보장 받음

D. In response to the instant decision, the applicant filed an objection with the Committee on November 15, 2006, but dismissed on November 27, 2006, the applicant filed an administrative lawsuit against the Committee on December 8, 2006 against the Committee to seek revocation of the instant decision under this Court No. 2006Guhap45371, and on June 5, 2007, Article 2 subparagraph 9 of the Special Act, which was part of the Act on the Grounds of the instant decision, filed an application for an adjudication on the unconstitutionality of the Constitution in violation of Articles 10, 11(1) and (2), and 12(3) of the Constitution and filed an application for an adjudication on the constitutionality of the Act with the Court.

2. For the purpose of this Act, Article 2 (Definition) of the Special Act on Finding the Truth of Anti-National Acts under the Regulation and Rule of Acts subject to Application, the term "pro-Japanese act" means any act falling under any of the following subparagraphs, which was performed from the opening of the war of the Japanese colonialism to August 15, 1945, from the beginning of the seizure of national sovereignty:

9. Engaging in the activities of the Vice-Speaker, Vice-Speaker or Vice-Speaker, Advisor or Chairman;

3. Related statutes;

Article 1 (Purpose) of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (Purpose) The purpose of this Act is to identify the truth of the history and the identity of the nation, and to confirm the unity of the nation and to contribute to the realization of social justice, by ascertaining the truth of the fact of pro-Japanese and anti-national acts performed for the Japanese colonial rule from the beginning of the seizure of national sovereignty by the Japanese colonial rule to August 15, 1945.

Article 2 (Definition) For the purpose of this Act, the term "friendly and anti-national act" means any act falling under any of the following subparagraphs, which was committed from the commencement of the seizure of national sovereignty by the Japanese colonialism until August 15, 1945:

1. An act of attacking against, or ordering an attack against, the Japanese colonialism and a military unit booming in order to protect national sovereignty; 2. An act of coercing dissolution, confinement, assault, etc. of, an organization or an individual who is a strikeing to recover national sovereignty;

3. Murder, death, punishment, abuse, or arrest, or giving instructions or orders, to a person who has participated in the independence movement or anti-Japanese movement and his/her family members;

4. The head or executive officer of an organization organized with the purpose of interfering with the independence movement, who acts centered on the decision-making of the organization or takes charge of such activities;

5. An act impeding the independence movement or anti-Japanese movement by smuggling.

6. Conclusion or entrustment of, or solicitation of, a treaty which infringes on national sovereignty, such as a treaty concluded between Korea and Japan, and a merger treaty;

8. Activities as a member of the meeting of Japanese Empires or as a member of the meeting;

19. Activities as the Vice-Speaker, advisor, or witness of the Korean War Veterans General;

1. An act of actively cooperating with a second-grade or higher-ranking officer of the Japanese army in the Japanese army; 11. An act of propaganda, inciting, or coercing a student volunteer soldier, a disciplinary soldier, or a requisition at a nationwide level; 12. An act of forcing a female soldier to mobilize him/her for the purpose of committing an offense against the Japanese army;

13. An act of actively cooperating in the colonial rule and aggressive war of the Japanese colonial rule by actively leading the Japanese colonial rule or the Japanese popularization movement through a social, cultural or cultural institution or organization;

14. Operating munitions manufacturers to assist in the execution of wars by the Japanese colonialism, or contributing money and valuables in excess of the scale prescribed by the Presidential Decree;

15. An act of actively leading members of our nation, such as confinement, adviser, abuse, etc. by judge, prosecutor, or judicial management, to the suppression of coal pressure;

16. Taking active front of a suppression, such as the management of ancient literature museum or higher, the detention of members of our nation who are no high national police officer or police officer, or abuse of adviser or adviser, etc.;

17. Act of positively cooperating in the colonial rule and aggressive war of the Japanese colonialism as the head or an executive member of the major external group of the Japanese governing body;

18. The act of making a decision-making centered on the acquisition of properties of the Korean people, or the act of taking the lead in the execution thereof, as the executive officers of central and local organizations, such as Gyeyang-type or Food Bank, etc.; and

19. Act of significantly cooperating with the Japanese colonialism, who was awarded a reward or decoration in cooperation with the Japanese colonial rule and the war against aggression; and

20. An act of actively cooperating with the destruction or suicide of national culture and the damage or removal of cultural heritage by Japaneseism and Japanese people. Article 19 (Selection of Persons Subject to Investigation and Objection against Litigation)

(1) When the Committee has reasonable grounds to believe that an act of pro-Japanese is an act of pro-Japanese and recognizes that the contents thereof are serious, it may select persons subject to investigation by resolution and conduct necessary investigation. In such cases, it may receive information from the people.

(2) When the Committee has selected a person subject to investigation pursuant to paragraph (1), it shall notify the relevant person subject to investigation, his/her spouse, lineal descendant or interested person thereof.

(5) Where a person notified pursuant to paragraphs (2) and (3) has an objection to the selection of the person subject to investigation, he/she may file an objection with the Commission in writing within 60 days from the date of receipt of the notification.

(6) The Committee shall decide on an objection within 30 days from the date of receiving the objection, and notify in writing the applicant of the result.

Article 20 (Subject Matter of Investigation) (1) In the event that a person subject to investigation commences an investigation pursuant to Article 19 (1), if any, objects to the investigation against the deprivation of national sovereignty, or participate in or support for the independent movement at home or abroad, the Commission shall also investigate such fact.

(2) The Commission shall enter the details of the investigation conducted pursuant to the provisions of paragraph (1) in an investigation report under Article 25 and in feed under Article 26.

Article 25 (Report) The Committee shall prepare an investigation report on the activities of the Committee and report it to the National Assembly during the period of the President and the regular session of the National Assembly

Article 26 (Compilation of Feed) The Institute shall compile feed concerning pro-Japanese and anti-national acts within the period of activities provided for in Article 8.

Article 28 (Objection against Results of Investigation) (1) The Committee shall confirm the investigation report under Article 25 or the pro-Japanese act of a person subject to investigation to be entered in the feed under Article 26 and notify the person subject to investigation, his spouse, lineal descendant or interested person selected pursuant to Article 19 of the details thereof.

(4) Where a person in receipt of notification under paragraphs (1) and (2) deems that the details of notification are not in conformity with the facts, he/she may file an objection in writing with the Commission within 60 days after receipt of the notification.

(5) The Committee shall decide on an objection within 30 days from the date of receiving the objection, and notify in writing the applicant of the result.

4. Judgment on the premise of judgment

A. The meaning of the premise of the trial

In order to request a trial on the constitutionality of a law, the pertinent law must be the premise for a trial on the constitutionality of a law. Here, the term "case becomes the premise for a trial on the pertinent case." The term "case becomes the premise for a trial on the pertinent case" means a case where a specific case is pending in the court, the law at issue is applicable to the relevant litigation case, and the court in charge of the relevant case makes another decision depending on whether the law is in violation of the Constitution (see, e.g., Supreme Court Order 2002Hun-Ba13, Sept. 27, 2002). Therefore, in a case where a court cannot be dismissed on the ground that it fails to meet the legal requirements stipulated in the relevant law, which are not subject to an application for proposing the constitutionality of a law, but is unlawful due to the lack of the prerequisite for a trial on the relevant litigation case (see, e.g., Constitutional Court Order 2003Hun-Ba113, Mar. 31, 2005).

B. Whether the case satisfies the requirements of lawsuit on the merits (1) disposition

disposition which is the object of administrative litigation means the exercise or refusal of public power as an enforcement of law with respect to a concrete fact by an administrative agency, and other corresponding administrative actions (Article 2(1)1 of the Administrative Litigation Act), and the application of law which directly affect the rights and obligations of the people.

Article 4 of the Special Act provides that the designation of a person subject to investigation of pro-Japanese acts, the investigation of pro-Japanese acts conducted by a person subject to investigation, the determination of pro-Japanese acts by a person subject to investigation, the preparation and publication of investigation reports, and the compilation of feed on pro-Japanese acts shall be based on the Commission's investigation report, and Article 25 of the Special Act provides that the Commission shall prepare an investigation report and report it to the National Assembly every year during the presidential and regular session of the National Assembly. Article 26 of the Special Act provides that the Commission shall compile feed on pro-Japanese activities within the period of activities under Article 8, and Article 27 of the Special Act provides that the said investigation report and feed shall be disclosed.

On the other hand, Article 10 (1) of the Constitution provides that all citizens shall have dignity and value as human beings and have the right to pursue happiness, and this provision shall guarantee an individual's general personal right from the dignity of human beings protected by this provision.

However, if the act of a person subject to investigation is decided as a pro-Japanese act by the committee, it is highly likely that his personal rights may be infringed directly due to damage to the reputation of the person subject to investigation as well as the social reputation of the person subject to investigation. Furthermore, as seen above, if the act is decided as a pro-Japanese offender, the report of investigation and the feed prepared thereon should be disclosed. Thus, the decision of the committee-friendly and anti-national act is decided to have

Since the general personality rights of persons subject to investigation are restricted, the decision of the Commission's pro-Japanese act is not merely an academic investigation but an act subject to the law that directly affects the rights and obligations of the people, and thus constitutes a disposition subject to administrative litigation. Meanwhile, Articles 2, 3, and 5 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State provides that the property of a person who committed an act under subparagraphs 6 through 9 of Article 2 of the Special Act and the inherited property shall belong to the State under certain conditions, and the results investigated by the Commission under Article 3 of the Special Act shall be invoked in the investigation and selection of a pro-Japanese and Anti-National Collaborators to the State. Thus, the decision of the Commission is an act subject to the law that may affect the property rights of the people, and therefore, it is reasonable to deem that the decision constitutes a disposition subject to administrative litigation.

According to Article 12 of the Administrative Litigation Act, the revocation lawsuit can be instituted by a person who has legal interest in seeking the revocation of the disposition, etc., and even if the applicant is not only the person subject to the investigation but also his/her lineal descendant, the decision of this case is judged to be descendants of pro-Japanese and anti-national actors due to the decision of this case on his/her good order. Thus, the decision of this case not only may harm the applicant's reputation, but also directly limit his/her personality rights by impairing the social reputation of the person subject to the investigation. In addition, Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State provides that the property shall be inherited from the person who is pro-Japanese and anti-national act, so the applicant who is a lineal descendant of the person subject to the investigation may be subject to restriction on the property rights due to the decision of this case. Meanwhile, according to Articles 19 (2), 24, and 28 of the Special Act, the applicant and his/her lineal descendant have the right to file an objection against the investigation results

Therefore, in light of the above point, the applicant has a legal interest to seek the cancellation of the decision of this case.

C. Possibility to make a different decision depending on the unconstitutionality of the provision on the motion for unconstitutionality.

Article 2 subparagraph 9 (hereinafter referred to as "the legal provision of this case") of the Special Act claiming that the applicant is unconstitutional is defined as pro-Japanese act. If the above legal provision of this case is unconstitutional, the decision of this case is legitimate only by itself, regardless of whether there are other circumstances that make it not possible to regard the activity period or active activity or other activity as pro-Japanese act, if the above legal provision of this case is unconstitutional. However, if the above legal provision of this case is unconstitutional, it can determine the legitimacy of the decision of this case before the determination of the above reasons. Thus, even if the unconstitutionality of the law does not affect the conclusion or order of the judgment, or at least it does not affect the order of the judgment itself, it constitutes a case related to the different reasons to lead the conclusion of the judgment.

Therefore, the legal provisions of this case have ‘the premise of the trial' under Article 41(1) of the Constitutional Court Act.

5. Whether any provision applicable to the application is unconstitutional;

(a) The nature of staff members of the First Lieutenant and the First Lieutenant;

According to the records, the following facts are recognized.

In 1894, the Prosecutor General was established in the course of political reform at the time of Gap's 1894, and was established in order to give preferential treatment to those who have not worked not less than two regulars of workers at the beginning, and was changed into an organization that conducts an examination of major national issues, such as matters concerning the amendment of the law, by strengthening the authority and strengthening the control in 1895 and 1898. However, after the merger of Korea, 1910.

10.1. The senior officer established under the senior officer system of the Joseon General, which was in force on January 1, 200, was established as the senior officer officer of the Joseon General, for the purpose of using it as a tool to rationalize food control policies by raising the impression that Japan maintained the control or administrative body of the senior officer and to utilize it as a tool to rationalize food control policies.

At first, there were three persons, consisting of one chairperson, one vice-chairperson, 15 advisers, 20 vice-chairperson (by-lease), 35 vice-chairperson (by-lease), 35 vice-chairperson, 35 vice-chairperson, 2 vice-president, and 3 interpreters.

Since the 1st campaign, since the unauthorized Rule of Japan was converted into the culture rule based on the national divided policy, the control was revised on April 1921. The control was divided into an illegal rent-free and rental-free, and the number of persons was adjusted to 65 persons, and the voting rights that were only given to the adviser was extended to 65 persons, and the term of office was fixed to 3 years.

On the other hand, the composition and function of the Joseon General Captain changed in the 1910s (the 1st ordinary period), the 1920s (the 2nd ordinary period), and the 1930s (the 3rd ordinary period). The 1st period has the nature of the so-called 'friendly relationship' given to the 'the 3rd ordinary period' who cooperate mainly in the merger of Korea, and the 2nd period was engaged mainly in the investigation to obtain the effects of the 1st general rule, focusing on the persons who have the 1st general rule and the vice-principal of Japan. The 3rd period was strengthd as the 'political participation right' of the 'political participation right' of the 1st executive officer in the cooperation of the 1910s.

나. 이 사건 법률조항의 위헌성 ( 1 ) 특별법의 제정 목적3 · 1운동은 1919. 3. 1. 일본제국주의에 대항하여 이 땅에서 거국적으로 일어난 민족의 독립운동으로서 그 정신의 요체는 3 · 1운동에서 선포된 독립선언서에 잘 나타나 있는데, 위 독립선언서는 " 吾等 ( 오등 ) 은 玆 ( 자 ) 에 我 ( 아 ) 朝鮮 ( 조선 ) 의 獨立國 ( 독립국 ) 임과 朝鮮人 ( 조선인 ) 의 自主民 ( 자주민 ) 임을 宣言 ( 선언 ) 하노라. 此 ( 차 ) 로써 世界萬邦 ( 세계 만방 ) 에 告 ( 고 ) 하야 人類平等 ( 인류 평등 ) 의 大義 ( 대의 ) 를 克明 ( 극명 ) 하며, 此 ( 차 ) 로써 子孫萬代 ( 자손만대 ) 에 품 ( 고 ) 하야 民族自存 ( 민족자존 ) 의 政權 ( 정권 ) 을 永有 ( 영유 ) 케하노라. " 로 시작되고 있다. 현행 헌법상의 ' 3 · 1운동으로 건립된 대한민국임시정부의 법통. …. … 을 계승하고 ' 라는 부분은 광복 후 1948년에 수립된 대한민국정부가 3 · 1운 동의 역사적 산물인 대한민국임시정부의 이념과 성격을 계승한 것임을 분명히 하고 있고, 헌법 전문 중의 ' 법통의 계승 ' 은 대한민국임시정부의 정통성의 계승을 의미하며, 대한민국임시정부의 법통의 계승은 대한민국임시정부의 입헌주의적, 자주독립적, 민족자 결주의적 성격과 이념을 계승하고 있음을 의미하는 것이다 .

Ultimately, succession to the law of the provisional government of the Republic of Korea, which was established by the third and one movement of the preamble of the Constitution, was declared by the Republic of Korea to have been achieved on the basis of the contribution and sacrifice of the independent athletes who fighted against the Japanese colonial rule (Supreme Court Order 2004Hun-Ma859 Decided June 30, 2005). This is the fundamental decision of the person with the power to enact the Constitution, which is maintained from the date of the enactment of the Constitution to the present time. The starting point of our Constitution is clearly clear that the Japanese colonial rule is denied, and it constitutes the core of the constitutional ideology, which is the result of the fundamental decision or agreement of the people who are the power to enact the Constitution, as well as the nation, since it is the core of the constitutional ideology, which is the result of the fundamental decision or agreement of the people who are the power to enact the Constitution, not only individual citizens, but also the nation, for the purpose of supporting historical research in the private sector, and it must be confirmed that the fundamental rights and social justice should be implemented under the above constitutional principles.

Article 10 of the Constitution provides that all citizens shall have dignity and value as human beings and have the right to pursue happiness, and that the general personal rights of individuals shall be guaranteed from human dignity protected by this provision. However, if a person subject to investigation is determined by a committee as pro-Japanese act, the person subject to investigation may be directly infringed on his/her personal rights due to not only the reputation appraisal of the person subject to investigation but also the social reputation of the person subject to investigation. Furthermore, as seen above, if a person is determined as a pro-Japanese act, his/her report of investigation and feed should be disclosed. As such, the Commission’s decision on pro-Japanese act is bound to restrict the general personal rights of the person subject to investigation determined to have committed pro-Japanese act. Accordingly, such restriction on rights and freedom does not violate the principle of excessive prohibition or proportionality as stipulated in Article 37(2) of the Constitution in terms of the purpose and method of such restriction.

The principle of excessive prohibition refers to the limit of basic principles or legislative activities to be observed by the State in carrying out legislative activities that limit the fundamental rights of the people. The legislative purpose of restricting the fundamental rights of the people is to recognize legitimacy in accordance with the Constitution and laws system (justifiableness of the purpose), and the means must be effective and appropriate in order to achieve the purpose (conformity of the means), even if the measures of restricting the fundamental rights chosen by the legislative authority are appropriate for the achievement of the legislative purpose, the restriction of the fundamental rights should be limited to the minimum necessary (minimum degree of damage), and the public interest should be more protected when balancing the public interest protected by the legislation with the private interest infringed upon by the legislation (e.g., balance of legal interests). (See Constitutional Court Order 89HunGa95 delivered on September 3, 199, etc.).

As seen earlier, as a result of the Japanese colonial rule, the Japanese colonial rule was established as a tool for the fundamental rationalization of the Japanese colonial rule, and as a member of the Japanese colonial rule, the Japanese colonial rule was mainly appointed by a person who has contributed to the Japanese colonial rule, or a person who has contributed to the Japanese colonial rule, and was in charge of the role of passive rationalization or active cooperation in the Japanese colonial rule at the time. In addition, in the situation of the times suffering from Japanese colonial rule, the Japanese colonial rule alone cannot be said to have not committed anti-national acts solely on the ground that there was a pivotal organization in cooperation with Japanese colonial rule as well as the specific activities of the individual in the situation of the times suffering from Japanese colonial rule, and thus, the Japanese colonial rule itself cannot be deemed to have violated the principle of excessive prohibition or proportionality as stipulated in Article 37(2) of the Constitution.

However, the Special Act defines pro-Japanese acts and uses terms such as ‘the mother', ‘ active cooperation', ‘centered performance', and ‘the other acts defined as pro-Japanese acts', while defining pro-Japanese acts. In addition, the Special Act provides that acts defined as pro-Japanese and anti-national acts can be determined as pro-Japanese acts by itself or by itself as members of the Japanese Parliament. The Special Act provides that ‘the acts of persons subject to investigation shall be determined as pro-national acts.' On the other hand, the Special Act provides that ‘the acts of persons subject to investigation shall be determined as pro-national acts, regardless of the procedure for the determination of pro-Japanese acts.' On the other hand, since the Special Act provides that ‘the selection of persons subject to investigation', ‘pro-Japanese acts of persons subject to investigation', ‘pro-Japanese acts of persons subject to investigation', which are highly likely to be regarded as acts of pro-Japanese and anti-national acts of persons subject to investigation', it appears that those acts of persons subject to investigation may not be determined by the Presidential Decree or anti-national acts.

Therefore, considering the above comprehensively taking into account the nature of the senior officer of the Joseon General and its staff as well as the historical situation, spirit of our Constitution, etc., it is difficult to see that the act of the senior officer of the Joseon General and its staff as a pro-Japanese act is in violation of the Constitution. On the other hand, as seen earlier, the characteristics of the senior officer and its staff were different depending on the age, and the degree of the significance of the reference was not certain, and the distinction of treatment was different depending on their authority and actual activities, and the head of the tenure of office and other special circumstances were different. Considering that the legal provision of this case was defined as a pro-Japanese act, and that the fact of the act of the senior officer of the senior officer of the Japanese General and its staff is defined as a pro-Japanese act, and that the act of the senior officer or any exceptional reason is not prescribed should be doubtful to be in violation of the principle of excessive prohibition or the principle of proportionality in terms of the minimum amount of damage or balance of legal interests.

6. Conclusion

Therefore, the legal provision of this case is not only the premise of the judgment of the case where the unconstitutionality is stated in the order, but also there are reasonable grounds to recognize that it violates the provisions of Articles 10 and 37 (2) of the Constitution. Therefore, it is so decided as per Disposition

October 31, 2007

Judges Lee Young-young

Judges double assistant instructors

Judge Park Sung-sung