[1] Whether the "decision on pro-Japanese act" of the Anti-National Act Finding the Truth of the Anti-National Act constitutes a disposition subject to administrative litigation (affirmative)

[2] Whether a lineal descendant of a person subject to investigation of pro-Japanese act has a legal interest in seeking revocation of a decision of pro-Japanese act (affirmative)

[3] Whether Article 2 subparagraph 9 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule, which provides for an act of acting as a Vice-Speaker, Vice-Speaker, Advisor, or a witness of the Japanese General Government, is unconstitutional (negative)

[1] According to the "Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule" (hereinafter "Special Act"), the Anti-National Acts Truth Committee shall select a person subject to investigation of anti-national acts and determine whether they constitute pro-Japanese acts after investigating pro-Japanese acts committed by the person subject to investigation of anti-national acts, prepare an investigation report, and report it to the National Assembly during the period of the President and the regular session of the National Assembly, and compile records on pro-Japanese acts. However, if the committee determines the act of the person subject to investigation as pro-Japanese acts, not only the honorary sentiment of the person subject to investigation but also the social evaluation of the person subject to the investigation, and it is highly likely that his personality rights may be directly infringed upon. Furthermore, if the committee determines as pro-Japanese general acts, the decision of pro-Japanese general acts by the above committee is restricted to the general personality rights of the person subject to investigation determined to have committed pro-Japanese acts, and thus, it constitutes an act of application of the law directly affecting the rights and duties of the people.

[2] The person subject to investigation shall be evaluated as a pro-Japanese offender and his lineal descendants shall also be evaluated as the descendants of pro-Japanese and anti-national actors due to the determination of pro-Japanese behavior by the committee for ascertaining the truth of pro-Japanese behavior. Thus, the above disposition not only may harm the reputation of his lineal descendants, but also directly limit his/her personal rights due to damage to his/her reputation, which is the social evaluation of the person subject to investigation, and Article 2 subparagraph 2 of the Special Act on the Reversion of Property Pro-Japanese and Anti-National Collaborative Acts provides that the property inherited from the person subject to the investigation shall also be pro-Japanese property. Thus, the lineal descendants of the person subject to investigation may be subject to restriction on property rights due to the above disposition; according to Articles 19 (2), 24, and 28 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese Rule, the person subject to investigation and his/her lineal descendants shall be deemed to have legal interests in seeking the cancellation of the above disposition.

[3] The Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule provides for the spirit of 3/1 movement declared by the preamble of the Constitution and the study of the Provisional Government of the Republic of Korea based on the contribution and sacrifice of the persons who performed an independence movement by fighting against the Japanese colonial rule, and it is legitimate to establish it to contribute to the realization of social justice in the future by ascertaining the truth of history and the consistency of the nation, and by making it historical education as it is legitimate to establish it in order to contribute to the realization of social justice. Considering that the nature and functions of the Anti-National Advisory Council as an anti-national advisory organization of the Japanese Vice Minister, the circumstances leading up to the enactment of the Special Act and the contents of its activities as an advisor and witness, it is hard to say that the legislative purpose of the Special Act is against the principle of proportionality of the Republic of Korea's overall politics and public interest orientedism, and thus, if it is presented as an advisor or relative of the Japanese government, who did not carry out the above activities as an infringement of the general purpose and interest of the Japanese government.

[1] Article 2 (1) 1 of the Administrative Litigation Act, Articles 4, 25, 26, and 27 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule, Articles 2, 3, and 5 of the Special Act to Reversion Property of Pro-Japanese and Anti-National Collaborative Acts to the State / [2] Article 12 of the Administrative Litigation Act, Article 2 of the Special Act to Reversion Property of Pro-Japanese and Anti-National Collaborative Acts to the State, Articles 19 (2), 24, and 28 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese Rule Rule 10/3] Article 2 subparagraph 9 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese Rule 1, Article 37 (2) of the Constitution

[Judgment of the court below]

Minister of Public Administration

September 2, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Commission for Finding the Truth of Anti-National Acts (hereinafter referred to as the "Commission of this case") shall revoke the disposition determined as pro-Japanese acts by Article 2 subparagraph 9 of the Special Act on Finding the Truth of Anti-National Acts (hereinafter referred to as the "Special Act") on June 23, 2009 by the deceased non-party 1 (hereinafter referred to as the "the deceased").

1. Details of the disposition;

(a) Status of parties;

1) On November 6, 1989, the deceased was born from around 1908 to around 1910, and was on duty as a resident distist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dist dd dist dist dist dist dist dist dist dist dist dist d dist d dist d dist dist d dist d dist d d d d d d. d d. d. d.

The plaintiff is the deceased's grandchildren.

2) The instant commission was established pursuant to Article 3 of the Special Act to identify the truth of pro-Japanese acts, such as the selection of persons to be subject to the investigation of pro-Japanese acts and the decision on pro-Japanese acts by those subject to the investigation of pro-Japanese acts. As the period of the instant commission’s activities expired on November 30, 2009, the Defendant succeeded to the authority related to the instant disposition.

3) The committee of this case selected the deceased as a person subject to pro-Japanese act on August 11, 2008 pursuant to Article 19(1) of the Special Act, and decided on August 3, 1939 as follows: “The deceased sent the staff member of the Joseon Do governor, the advisory body of the Joseon Do governor, for three years from June 3, 1939 to June 2, 1942. During the 21st Session (1940) and 22th Session (1941), during the 21st Session (1940), he participated in the meeting of the 21st Session of the Republic of Korea. In particular, at the 21st Session (1940), the committee decided on May 29, 200 to integrate various organizations of rural communities into the National Assembly members of the National Assembly, the necessity for the dissemination of Korean language through the tour lecture and printed materials distribution, and to give them pride to the plaintiff on the ground that he should have been sexually friendly with Japanese people.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, 4, Eul evidence 1 to 7 (including each number), the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

1) Whether the disposition is made

According to the special law, the committee of this case determines whether a person subject to the investigation of pro-Japanese act constitutes pro-Japanese act after investigating the pro-Japanese act of the person subject to the investigation of pro-Japanese act, prepare an investigation report, and report it to the National Assembly during the period of the President and the regular session of the National Assembly, and compile feed on pro-Japanese act. Therefore, the decision of pro-Japanese act by the committee of this case is merely the result of pure investigation conducted by the committee of this case, and it does not affect the rights and obligations of the person subject to the

(ii)existence of standing to sue

The disposition of the instant commission did not infringe on the legal interest of the person subject to investigation who is the deceased person. Furthermore, the Plaintiff is not a person subject to investigation, and the Plaintiff does not have any influence on its legal status, and thus there is no legal interest in seeking the cancellation of the instant disposition.

B. Determination

1) Determination on whether a disposition is made

A disposition subject to 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 duties of the people.

Article 4 of the Special Act provides for matters concerning the selection of a person subject to investigation of pro-Japanese acts, investigation of pro-Japanese acts conducted by a person subject to investigation, collection and analysis of domestic and foreign materials related to pro-Japanese acts, and decision-making on pro-Japanese acts by a person subject to investigation of pro-Japanese acts as the duties of the committee of this case. According to Article 25 of the same Act, the committee of this case shall prepare an investigation report on pro-Japanese acts, and report it to the National Assembly every year during the presidential and regular session of the National Assembly. According to Article 26 of the same Act, the committee of this case shall compile historical records on pro-Japanese acts within the period of its activities, and according to Article 27 of the same Act, the committee of this case

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. The general personal rights of individuals are guaranteed from the dignity of human beings protected by this provision.

However, when the committee determines the act of the person subject to investigation as pro-Japanese act, it is highly likely that the person subject to investigation may be directly infringed upon his/her personal right due to damage to his/her reputation, as well as the reputation of the person subject to investigation. Furthermore, as seen earlier, if the committee determines as pro-Japanese act, the investigation report and the feed prepared regarding the act should be disclosed externally. As such, the decision of pro-Japanese act by the committee of this case is limited to the general personal right of the person subject to investigation determined as having committed pro-Japanese act, and it is reasonable to deem that it is not just a scientific investigator but also an act of applying the law

In addition, Article 2, Article 3, and Article 5 of the Special Act on the Reversion of Property for Pro-Japanese Collaborative Acts to the State stipulates that the property of a person who committed an act under Article 2 subparagraphs 6 through 9 of Article 2 of the Special Act and the inherited property shall belong to the State under certain conditions, and Article 3 of the Special Act provides that the results investigated by the Committee of this case may be invoked in the course of investigating and selecting pro-Japanese Collaborative Acts. Thus, it is reasonable to view the decision of the Committee of this case as an act of applying the Act that may affect the people's property rights in the above respect.

Therefore, the disposition of this case constitutes a disposition subject to administrative litigation, so this part of the defendant's assertion is without merit.

2) Determination as to whether standing to sue exists

In light of the fact that the disposition of this case is subject to evaluation as a pro-Japanese and that the plaintiff, his lineal descendants, is subject to evaluation as the descendants of pro-Japanese and anti-national actors, the disposition of this case is likely to harm the plaintiff's reputation, and that it directly limits his personal rights due to damage to the reputation of the person subject to evaluation, and that Article 2 subparagraph 2 of the Special Act on the Reversion of Property Pro-Japanese and Anti-National Collaborators to the State stipulates that property inherited from the person who is pro-Japanese and anti-national actors to the State shall be pro-Japanese property. Thus, the plaintiff, who is a lineal descendant of the person subject to investigation, is in danger of being restricted from property rights due to the disposition of this case, and Articles 19 (2), 24, and 28 of the Special Act provide that the plaintiff and his lineal descendants, as well as the plaintiff, have the right to receive notification and objection to the selection of the person subject to investigation, right to state opinion in the course of investigation, and right to raise objections to the result of investigation.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The deceased was not forced by the Japanese governor of the Japanese War under the Japanese colonial rule, and was on duty as a staff member of the Japanese governor from June 3, 1939 to June 2, 1942, and was only present at the meeting of the Japanese governor. As such, the deceased’s act performed as a staff member of the Japanese governor cannot be deemed as a pro-Japanese act.

2) Although the Deceased did not cooperate with the Japanese government, he was subject to a non-prosecution disposition at the time of investigation under the Act on the Punishment of Anti-National Acts in 1949. The instant disposition made by the instant commission pursuant to Article 2 Subparag. 9 of the Special Act after the lapse of 60 years is unlawful against the principle of prohibition against double Jeopardy and the principle of prohibition against disadvantages by retroactive legislation.

3) Article 2 Subparag. 9 of the Special Act does not stipulate any exception as a pro-Japanese act in a uniform manner, regardless of special circumstances in the term of office, the participation in or support for a separate independent movement, and the details of specific activities, etc. Therefore, it is unconstitutional in violation of the principle of excessive prohibition under the Constitution or the principle of proportionality. The instant disposition is unlawful based on the foregoing provision, which is unconstitutional.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the deceased's act constitutes pro-Japanese acts

Article 2 subparagraph 9 of the Special Act provides that "act of acting as the Vice-Speaker, Advisor, Advisor or Advisor of the Cho Jong-gun's Vice-Speaker" shall be an act of pro-Japanese, and as long as the deceased acts as the deceased acts as the staff, adviser, and advisor of the Joseon General, such act is an act of pro-Japanese and anti-national act as provided by Article 2 subparagraph 9 of the Special Act.

2) Whether the principle of prohibition against double Jeopardy and prohibition of retroactive legislation are violated

Since the effect of res judicata occurs at the time of final and conclusive judgment, even if the prosecutor received a non-prosecution disposition in accordance with the Punishment of Anti-National Acts Act, as alleged by the Plaintiff, the instant disposition cannot be deemed unlawful against the principle of res judicata.

In addition, Article 13(2) of the Constitution declares the principle of prohibition of retroactive legislation by stipulating that "All citizens shall not be subject to restrictions on political rights or deprived of property rights by retroactive legislation." The Special Act only prescribes that a certain act of a person selected as a person subject to investigation for the Japanese nationalism shall be determined as a pro-Japanese act from the time when the seizure of national rights was commenced to August 15, 1945 from the time when the seizure of national sovereignty was commenced to August 15, 1945, and it shall not be deemed unlawful against the principle of prohibition of retroactive legislation, since the Special Act does not stipulate that a certain act of a person selected as a person subject to investigation for the Japanese nationalism shall be determined as a pro-Japanese act and notify the person subject to investigation or his lineal descendants, etc. of such decision.

3) Whether Article 2 subparagraph 9 of the Special Act is unconstitutional

(A) nature and function of the First Lieutenant;

The following facts are recognized in full view of the respective descriptions of evidence Nos. 8, 9, and 10 and the purport of the whole pleadings.

In 1894, it was established in the process of political reform at the time of Gap's 1894. At the beginning, it was established in order to give preferential treatment to those who have no more than two regulars of office or more, and it was changed into an organization to review and decide on important national matters, such as matters concerning the amendment of the law, by strengthening authority gradually as a result of the revision of the control in 1895 and 1898.In addition, it was established in order to use as an instrument to rationalize food control policies by raising the increase that the senior executive officer established in accordance with the Japanese colonial rule, which came into force on October 1, 1910 after the Japanese merger, maintained the control or administrative body of the Japanese senior executive officer as the Japanese senior advisory agency.

In the first time, the senior secretary of the Joseon General was comprised of 1, 15, 20, 35, 35, 35, 35, 35, 2, and 3 interpreters. Since the March 1 movement, the unauthorized Government of Japan was converted into the cultural rule that was made in the group of national divided policies, the control was revised around April 1921. The control was divided into 65, and the number of persons was adjusted to 65, and the number of persons was extended to 65, and the period of office was extended to 3 years.

In the 1910s (ordinary No. 1), 1920's (ordinary No. 2), and 1930's (ordinary No. 33) the composition and function of the Japanese president were changed, respectively. The first period was the one of the duty-free officials given to the so-called "child-friendly" who mainly cooperateed in the Japanese merger, and the second period was the one of the duty-based investigation activities to obtain the effects of the Japanese president, focusing on the persons who have the general rule-making branch and the vice-principal, and the third period was the one of the advisory agencies, while the cooperation agencies of the Japanese president were the cooperation agencies, the political participation rights of the advisory agencies were strong, and the character of the advisory agency was the one of the advisory agencies.

On the other hand, the Joseon General Staff member was composed of a representative person who cooperates in daily affairs through various ways, such as public officials who participated in autonomy and advisory organizations such as high-ranking groups in the process of the first merger of Korea and Japan, Do governor and participating officers, representative executives of a representative pro-Japanese organization, Do Council, Do Council, deputy Council, etc. However, after the third and first movement of Korea, the Japanese General Assembly adopted the so-called cultural governing system, which led to the reorganization of the control as the center leader at the center of the previous leader, while the former senior senior citizens, including local maintenance, were also included in the former senior senior citizens-oriented group at the center of career in the senior senior citizens-oriented society in the 1930s. In particular, after the Japanese War of Japan, the 1930s, the participation of the senior citizens in the military was actively engaged in the development of the local government-oriented organization, including the local government-oriented organization, and the participation in the development of the local government-oriented society in the 194th war.

(B)the legitimacy of the objectives;

The preamble of the Constitution of the Republic of Korea provides that “The Korean nationals, who are light in the old history and tradition, succeed to the 4/19 democratic ideology, which stands against the law of the provisional government of the Republic of Korea established by the March 1st Movement, and based on the mission of democracy reform and peaceful unification of the fatherland,” thereby succeeding to the independence of the March 1st Movement, thereby declaring the receipt of the legal statistics of the provisional government of the Republic of Korea.

The preamble of the above Constitution is based on the historical and ideological basis of the Constitution of the Republic of Korea and serves as an interpretation standard in the interpretation of the Constitution or laws. In light of this purpose, the Special Act confirms that the Republic of Korea has been built on the basis of the contribution and sacrifice of the persons who committed an independence movement by resisting against the Japanese colonialism, and by examining the truth of the history of the anti-national act committed for the Japanese colonialism, it was enacted to confirm the identity of the nation and to contribute to the realization of social justice in the future. In light of this purpose, Article 2 Subparag. 9 of the Special Act is justified.

(C) the adequacy of the method and the minimum of the infringement;

As seen earlier, as a fundamental principle, the Japanese colonial officer was established as a tool for the rationalization of colonial rule and the general politics of Japanese colonial rule. The adviser and staff of the Japanese colonial rule have been commissioned and appointed from among those who have contributed to the Japanese colonial rule, those who have contributed to the Japanese colonial rule, or those who have contributed to the Japanese colonial rule in the process of governing the Japanese colonial rule, and those who have actively cooperated with the Japanese colonial rule or local rule, and the adviser and staff of the Japanese colonial rule have been employed in promoting the Japanese colonial rule or have been mobilized to actively cooperate in the Japanese colonial rule at the same time, such as the publicity of the Japanese colonial rule and the Japanese colonial rule, and the publicity of the Japanese colonial rule, the Japanese colonial rule has been mobilized for the Japanese colonial rule.

In light of the nature and function of the vice-national advisory body of the Japanese governor of the Korean War, the process in which the figures who participated in the vice-national advisory body of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese governor, and the contents of the activities as the adviser and staff of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese governor, if they were to act as the adviser or staff of the Japanese governor of the Japanese governor of the Japanese governor of the Japanese

Therefore, Article 2 subparagraph 9 of the Special Act provides that the act itself as an adviser or a witness of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine of the Doctrine, regardless

D) a balance of the legal interests;

Even if Article 2 subparagraph 9 of the Special Act does not specify the specific types of conduct-friendly and anti-national acts in detail, the act committed by a person subject to investigation as an adviser or a witness in the position of the Japanese governor-general, it is reasonable to view that the act is larger than that of a person subject to investigation or a lineal descendant whose public interest is infringed pursuant to the aforementioned Special Act in light of the legislative purpose and legislative intent of the Special Act.

E) Sub-decision

Thus, Article 2 subparagraph 9 of the Special Act cannot be deemed to violate the principle of excessive prohibition under the Constitution or the principle of proportionality. Thus, the plaintiff's assertion on a different premise is without merit.

4. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges lower-ranking (Presiding Judge)