Whether an act constitutes pro-Japanese and anti-national act under Article 2 subparag. 9 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule solely on the sole basis of the act performed as a member of the Staff General of the Japanese Government (affirmative in principle)

In full view of the provisions of Articles 3, 4, and 19(1) of the Special Act on Finding the Truth of Anti-National Acts under the Japanese Rule of Finding the Truth of Anti-National Acts and the legislative purport of the Special Act on Finding the Truth of Anti-National Acts, Article 2 subparag. 9 of the Special Act on Finding the Truth of Anti-National Acts (hereinafter “Special Act”), the nature and function of the provisions of Article 2 subparag. 9 of the Special Act as the anti-national advisory organization of the Joseon General, and the background leading up to the appointment and appointment of the mid-National Assembly members, political and legal status and duties, and the contents of their activities, in the case of the First Lieutenant General who was in charge of the key role of Japanese colonial politics and colonial rule, the act performed as a witness itself constitutes an anti-national act provided for in Article 2 subparag. 9 of the Special Act on Finding the Anti-National Acts. However, if the tenure of office is very shorter formally or formally, or his status as a relative, it shall be deemed that the nation has participated in or opposed to the general rule.

Articles 1, 2 subparag. 9, 3, 4, 19(1), 20, 24, and 28 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule;

Constitutional Court en banc Order 2007Hun-Ga23 Decided October 28, 2010 (Hun-Gong169, 1786)

Plaintiff (Law Firm LLC, Attorneys Kang Jae-sik et al., Counsel for the plaintiff-appellant)

Minister of Public Administration

Seoul High Court Decision 2010Nu21862 decided December 8, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

In light of the reasoning of the judgment of the court of first instance, the court below acknowledged the facts as stated in its judgment, such as the fact that the deceased non-party, who is the plaintiff's assistance team, worked as the senior secretary of the Korean War General for three years from September 13, 1941 to September 12, 194, and determined that the deceased's pro-Japanese act under the above provision constitutes a pro-Japanese act, since Article 2 subparagraph 9 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (hereinafter "Special Act") does not prescribe any specific act differently from subparagraph 1 of the same Article, and it does not stipulate "act as the senior vice-chairperson, adviser or senior secretary of the Japanese War General," and it is reasonable to interpret that the deceased's pro-Japanese act under the above provision is in itself recognized as an act as a senior citizen's participation in the Korean War General, or as an additional and specific act as a condition other than the above act.

Article 1 of the Special Act provides that "the purpose of this Act is to confirm the truth of history and the identity of the nation and to contribute to the realization of social justice by examining the truth of pro-Japanese acts performed for the Japanese colonial rule from the opening of the Japanese colonial rule to August 15, 1945," and Article 2 provides that "the term "the act of pro-Japanese" means any act falling under any of the following subparagraphs committed between the commencement of the Korean War and the commencement of the Korean War until August 15, 1945, which is one of the acts of pro-Japanese and anti-nationalism; the term "the act of pro-Japaneseism" is defined as one of the acts of pro-Japanese and anti-nationalism committed by the members of the Korean National Assembly or the members of the Korean National Assembly, the acts of pro-Japanese or the members of the Korean National Assembly, such as the members of the Korean National Assembly or the Vice-National Assembly, who are in charge of the Korean National Assembly affairs, or the active acts of the members of the Japanese National Assembly or the members of the Japanese National Assembly, etc."

Furthermore, according to the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted, the following facts are revealed.

Although the function and role of the senior executive officer of the Joseon General Government has changed according to the historical situation, the basic activity was to deliberate and present his opinion on the agenda referred to it as the advisory organization of the General Government.In other words, the senior executive officer of the Joseon General Government is an organization established to contribute to the Japanese colonial rule and the Japanese colonial rule, which has basically a anti-national character that has been difficult to conduct various research and compilation work in order to rationalize the invasion of Japanese colonial rule and to strengthen the colonial rule system. In particular, since it was taken into the exhibition system around 1937, it was also utilized as an organization that cooperates with the continental invasion policy of the Japanese colonial rule.The senior executive officer of the senior executive officer of the Japanese General Government of the Republic of Korea and the staff have been able to do so in the process of Japanese colonial rule or in the process of governing the Japanese colonial rule, those who have newly contributed to the Japanese colonial rule, those who have been commissioned to actively cooperate in the Japanese colonial rule policy, the Japanese colonial rule policy or local government, etc., and have been used in the process to promote or promote the Japanese colonial policy.

In light of the status and role of the senior officer of the Joseon General, the acts of acting as the senior officer of the Joseon General, as prescribed by Article 2 subparag. 9 of the Special Act can be deemed as a representative pro-Japanese act. In addition, Article 4 subparag. 2 of the Punishment of Anti-National Acts (amended by Act No. 3, Sept. 22, 1948) of the Act on the Punishment of Anti-National Acts (amended by Act No. 3, Sept. 22, 1948) enacted under the Constitution of the Republic of Korea provides that a person who was a senior officer of the Korean War General, etc. may be punished by imprisonment for not more than 10 years or by a suspension of public rights for not more than 15 years, and may confiscate all or part of the property.

However, the Special Act establishes a committee for ascertaining the truth of pro-Japanese act (hereinafter “committee”) as an institution that performs the duties of ascertaining the truth of pro-Japanese act (Article 3), provides that matters concerning the selection of persons subject to investigation of pro-Japanese act, investigation and decision-making on the person subject to investigation of pro-Japanese act, etc. (Article 4), and Article 19(1) provides that “the committee may select a person subject to investigation by its resolution and make necessary investigation if there are reasonable grounds to believe that the person subject to investigation is pro-Japanese act and the contents thereof are serious.” Article 20 provides that “The Committee shall also investigate such facts if the person subject to investigation objects to the elimination of the sovereignty of the Japanese system at home and abroad for objective and fair investigation, or has participated in or has supported the independence movement,” and Article 19, Article 24, Article 28 provides that the person subject to investigation shall not immediately undergo the authority to state opinions and decision-making of the person subject to investigation, etc. from among the acts subject to investigation by the Japanese members, but undergo an exception to the Japanese general rule.

In full view of the provisions of the Special Act on the Investigation and Determination of Anti-National Collaborators of the Republic of Korea and the legislative purport of the Special Act as seen earlier, Article 2 subparag. 9 of the Special Act, the nature and function of the Anti-National Advisory Council as the Anti-National Advisory Council member of the Joseon General, the background leading up to the appointment and appointment of the First Lieutenant, and the political and legal status and duties thereof, and the contents of its activities, in the case of the First Lieutenant who served as a key role in the Japanese colonial rule and the colonial rule, the act of acting as a witness itself constitutes an anti-national act as prescribed by Article 2 subparag. 9 of the Special Act, subject to the decision of the Committee, unless there are special circumstances. However, if the tenure of office is very short or formally short, the act was merely a position as a member of the First Lieutenant General, and in fact, it should be excluded from the act of anti-Nationalism only in exceptional cases such as opposing the invasion of national sovereignty of the Japanese colonial rule, or participating in or supporting the independence movement.

According to the reasoning of the judgment of the first instance as cited by the court below and the evidence adopted by the court below, the deceased non-party is working as a senior to the senior to the senior to the senior to the senior to the senior to the senior to the senior to the Korean War for three years from September 13, 1941 to September 12, 194. During that period, the deceased non-party attended the senior to the senior to the senior to the senior to the senior to the senior to the Japanese Council for the first time and provided advice to the senior to the senior to the senior to the Japanese Council for the first time. In particular, after attending the 23th session of 1942, the government recommended the implementation of a compulsory education system as well as the implementation of the requisition to the "for the senior to become a strong member of the senior to the senior to the senior to the senior to the senior to the senior to the senior to the Japanese government as a strong member of the public authority."

In light of such factual relations in light of the above legal principles, the act of the deceased non-party as a member of the Japanese governor-general, constitutes pro-Japanese act under Article 2 subparag. 9 of the Special Act, and it does not change on the ground that there were prior acts, etc. as asserted by the Plaintiff.

The reasoning of the judgment of the court of first instance cited by the court below is not appropriate in that the act of the deceased non-party as the senior secretary of the Japanese governor of the Japanese War could be mistaken for that of pro-Japanese act without exception. However, in the case of this case where it is not acknowledged that exceptional reasons as seen earlier should be excluded from pro-Japanese act, the conclusion that the deceased non-party's act of acting as the senior secretary of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese War constitutes pro-Japanese act by itself without requiring additional and specific acts as a requirement is justifiable. In other words, the court below did not err by misapprehending the legal principles or omitting judgment which affected the conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)