(영문) 서울고등법원 2017.5.12. 선고 2016누973 판결

1. The defendant's appeal concerning the part remanded to this court by the judgment of remanding among the judgment of the court of first instance (the part that the Committee to Finding the Truth of Anti-National Acts has decided as pro-Japanese acts under Article 2 subparagraph 14 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule No. 2 of June 29, 2009) is dismissed.

2. The part arising between the Plaintiff and the Defendant out of the total costs of the lawsuit shall be divided into two parts, and the remainder shall be borne by the Plaintiff, the Defendant, respectively, and the part arising from the participation shall be borne by the Plaintiff’s Intervenor, and the remainder shall be borne by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

The Commission for Finding the Truth of Anti-National Acts (hereinafter referred to as the "Commission of this case") shall revoke the disposition (hereinafter referred to as the "disposition of this case") that was determined by the anti-national act in subparagraph 14 of Article 2 of the Special Act for Finding the Truth of Anti-National Acts (hereinafter referred to as the " Anti-National Finding Act") on June 29, 2009 by the Presidential Committee for Finding the Truth of Anti-National Acts (hereinafter referred to as the "Act").

2. Purport of appeal

The part concerning the disposition of this case among the judgment of the first instance is revoked, and the plaintiff's claim corresponding to this part is dismissed.

Reasons

1. Objects of adjudication of this Court;

(a) Facts of recognition;

The following facts are clear in records:

1) On June 29, 2009, the Plaintiff sought against the Defendant revocation of the disposition determined by the instant commission as pro-Japanese act under Article 2 subparags. 13, 14, and 17 of the Anti-National Identification Act, and the judgment of the court of first instance revoked the part concerning the instant disposition and dismissed the remainder of the claim.

2) As to this, in the first instance court before remanding the case where the plaintiff and the defendant appealed against each of the judgment of the first instance, the court of the first instance prior to remand partially accepted the plaintiff's appeal and decided each of the acts listed in the [Attachment 3] No. 17 of the part against the plaintiff in the judgment of the first instance as pro-Japanese act under Article 2 subparagraph 17 of the Anti-National Corruption Act, and revoked this part of the disposition and accepted the defendant's appeal, and dismissed the part of the judgment of the first instance as to the disposition

3) In the case where the Plaintiff and the Defendant appealed against each of the judgment of the party prior to remand, and the Supreme Court reversed the part concerning the disposition of this case among the judgment of the party prior to remand and remanded to this court, and all of the Plaintiff’s remaining appeals and the Defendant’s appeals were dismissed.

B. According to the above facts acknowledged by the court of this case, the judgment of this court is limited to the part concerning the disposition of this case among the judgment of the court of first instance.

2. The judgment of this Court

A. cite the reasoning of the judgment of the court of first instance

With respect to the subject matter to be tried by this court, this court's reasoning is identical to that of the judgment of the court of first instance, except for adding some contents as follows. Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

B. Determination added by this Court

1) The court to which the case was remanded by the court of final appeal at the binding force of the judgment reversed and remanded shall be bound by the court of final appeal, unless the court of final appeal submits new arguments or evidences in the course of the review after remanding the case, and changes in facts that form the basis of binding judgment occur (see, e.g., Supreme Court Decisions 95Da49233, Feb. 28, 1997; 97Da14934, Jul. 11, 1997). Accordingly, this court shall judge the subject of the judgment of this court in accordance with the above criteria.

2) Additional determination

Article 2 subparag. 14 of the Anti-National Code provides that "the act of operating munitions manufacturers or dedicated money or goods exceeding the size prescribed by Presidential Decree in order to assist the war execution of the Japanese colonialism" as one of pro-Japanese acts. In light of the purport and character of the Anti-National Code, the issue of whether an act constitutes the above act shall be strictly interpreted in accordance with the language and text, and there is a need to provide reasonable proof therefor." The literal meaning of "operation" is operated by organizations, organizations, and enterprises, and it is also subject to "operation of munitions manufacturers", unlike subparagraphs 8 and 9 of the provision that regards the act performed in a certain position as constituting pro-Japanese act.

In light of these circumstances, in order to fall under the pro-Japanese act as the "act of operating munitions manufacturers" stipulated in the former part of subparagraph 14, it is not sufficient to simply have served in a certain position in the munitions manufacturers in a certain position, and it is interpreted that in light of various materials, it has been recognized that it was an act to make decisions on the management of munitions manufacturers or to perform the main role in performing duties.

Meanwhile, according to the Medical Commercial Act applied at the time, the auditor is only a supervisory organ for the company’s business and accounting, and is not an executing institution. Although the auditor may demand the company to report its business or investigate the status of its business and property, he/she has the right to approve transactions between the company and the company and the company and may temporarily act for the company, and where there is a vacancy in the company, he/she may act for the company on behalf of the company. However, this is premised on the fact that the company operates the company with the power of representation for all judicial or extrajudicial acts of the company. Therefore, in light of the above legal principles, even if the deceased participated in the company as the promoters of G Co., Ltd. (hereinafter referred to as “G”), even if he/she held 1% of the shares of G and was appointed as the auditing station, it is not sufficient to deem that he/she operated G only with the reason that he/she did not have the authority to supervise and check the company’s business. Moreover, it cannot be viewed that the deceased merely carried out the decision-making or role in the business.

Therefore, it was erroneous that the committee of this case deemed that the deceased’s above act constituted pro-Japanese act as stipulated in Article 2 subparag. 14 of the Anti-National Corruption Act.

After remanding, the Defendant asserts that, “(i) the head of the Gun company producing an aircraft to put in the war against Japanese invasion” in the trial after remanding, “(ii) the deceased’s shares are 2,000,000 shares, but the total shares acquired by the deceased are 13.3% if converted based on 7.5% of the shares acquired by the individual; (iii) G’s estimated ratio of dividends at the time was also 1.5% per share; and (iv) the JapaneseJ, a Japanese auditor with the deceased, is a person subject to public office prosecution, the status of the auditor who was appointed by the deceased, constitutes a position of play a very important role in the operation of the company; and (ii) the deceased continued to commit the act falling under Article 2 subparag. 13 of the Anti-National Geographical Names Act, and thus, considering these series of acts in the overall context, it is recognized that the deceased committed a pro-Japanese act falling under Article 2 subparag. 14 of the Anti-National Geographical Names Act.”

However, the above argument by the defendant is not acceptable because it explicitly goes against the binding force of the judgment remanded to the court, and it is difficult to accept the above argument by the defendant, and the evidence Nos. 21 through 29-3 submitted by the defendant in the court of trial is an important policy task for the establishment of a military company, or it is proved that the BJ, which was the auditor at the time, was a person subject to public service, or that the audit station at the time was an important position in the company, and further, it does not prove that the deceased actually made a decision on the management of G or carried out a main role in the execution of the business. Thus, it is difficult to view that there was a change in factual relations based on the binding judgment as seen earlier solely on such evidence. Accordingly, the defendant's above argument is without merit.

3. Conclusion

Therefore, the plaintiff's claim as to the disposition of this case is justified. The judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.2)

Judges

The presiding judge, the full-time judge

Judges Singing on Board

For the purpose of judge sex impulse

Note tin

1) However, the text form has taken the form of the modified judgment.

2) The Plaintiff appears to have died on May 8, 2016, when the instant lawsuit was pending in the final appeal before the remanding of the case, but the litigation procedure has not been interrupted because the Plaintiff’s legal representative was in the case of the Plaintiff’s legal representative (Article 8(2) of the Administrative Litigation Act and Articles 238 and 233(1) of the Civil Procedure Act). In this case, the legal representative is responsible for all inheritors, and the judgment is effective against all inheritors (see Supreme Court Decision 2014Da210449, Apr. 2, 2016). This judgment is declared by using the previous Plaintiff’s indication notwithstanding the Plaintiff’s death.