[1] The method of reversing the presumption power under Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State

[2] In a case where the Investigation Committee on Pro-Japanese Collaborative Property for Pro-Japanese People decided that forest land owned by the State on the grounds that the forest land under the circumstances in 1913 is recognized as pro-Japanese property, the case holding that the court below erred in the misapprehension of legal principles, etc. on the ground that the forest land is presumed as pro-Japanese property pursuant to Article 2 subparagraph 2 of the Special Act on the Reversion of Property for Pro-Japanese Collaborative Persons

[1] In order to reverse the presumption power under Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State, the acquisition time of the property must be proved by either a counter-proof statement that leads to the court's conviction in regard to the premise that the acquisition time of the property is the death from the opening war of the Rus and the war of August 15, 1945, or a fact that the acquired property is not the price for pro-Japanese acts.

[2] In a case where the Investigation Committee on Property for Pro-Japanese Collaborative Acts of the Republic of Korea rendered a decision to vest the said woodland as owned by the State retroactively at the time of the act of acquiring the said woodland on the ground that the woodland was recognized as “property acquired in return for cooperation with the Japanese colonialism or inherited in return for the said woodland from the opening of the Japanese War to August 15, 1945,” under Article 2 subparag. 2 of the Special Act on the Asset Ownership of Pro-Japanese Collaborative Acts of the Republic of Korea (hereinafter “Presumption Clause”), the case holding that the lower court erred in the misapprehension of legal principles as to the presumption of ownership of the said woodland before receiving the said woodland or the presumption of ownership of the said woodland, and that the said woodland continued to have been acquired within 10 years since the fact that some of the aforementioned woodland was installed and managed before the opening of the Korean War, and that the said woodland was not enough to be deemed to have acquired the ownership of the said woodland, and that there was no violation of the presumption of ownership of the said woodland and the presumption of forest property within 10 years.”

[1] Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State / [2] Article 2 subparagraph 1 (a) and subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State

[1] Supreme Court Decision 2010Du28335 Decided March 28, 2013

Plaintiff 1 and one other (Seoul High Law Firm, Attorneys Park Sang-chul et al., Counsel for the plaintiff-appellant)

The Minister of Justice (the Minister of Justice and one other, Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu17624 decided November 17, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 2 Subparag. 2 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State (hereinafter “Special Act”) provides that “The property of pro-Japanese and anti-national actors” means the property acquired in return for cooperation with the Japanese colonialism from the opening of the war of the Rus and the Japanese War to August 15, 1945, or received a legacy or donation with the knowledge that it is the inherited property or pro-Japanese property. In such cases, from the opening of the war of the Rus and the Japanese War to August 15, 1945, the property acquired by the pro-Japanese and anti-Japanese shall be presumed to be the property acquired in return for pro-Japanese act.”

Therefore, in order to reverse the presumption of presumption clause in this case, the existence of a fact against the presumption that the time of acquisition of property is deceased from the opening of the Russ/Japan War to August 15, 1945 should be verified (see, e.g., Supreme Court Decision 2010Du28335, Mar. 28, 2013).

Meanwhile, the circumstance through the land survey project and forest land survey project was created for the first time by implementing the modern registration system based on the land cadastre and forest land register prepared as a result, and in principle, the ownership of the modern meaning was established by the report of the owner and through a certain verification procedure. However, since the time was very confused as a Japanese occupation, and the situation was conducted as to the land without reporting ownership or without real estate, or the land with unknown ownership, it does not necessarily mean that the system under the circumstance is merely a procedure to confirm the existing ownership of the land or forest land under the name of the situation. Since the land or forest land’s title holder acquired the land or forest temporarily by the original acquisition of the land or forest, the existing legal relationship with the land becomes extinguished and becomes acquired by the creation of ownership due to the circumstance (see, e.g., Supreme Court en banc Decision 84Meu1773, Jun. 10, 1986). The “acquisition” under the presumption clause of this case is also included in the acquisition of ownership due to the circumstance.

2. According to the reasoning of the judgment below, Nonparty 1 constitutes pro-national actors prescribed by the Special Act, and Nonparty 1’s non-party 1’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 1’s non-party 1’s non-party 2’s non-party 1’s non-party 1’s non-party 2’s non-party 1’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 3’s non-party 1’s non-party 5’s non-party 1’s non-party 1’s non-party 2’s non-party 3’s non-party 1’s non-party 2’s non-party 1’.

3. However, in light of the above legal principles and records, it is difficult to accept the above determination by the court below for the following reasons.

A. Ultimately, the lower court did not deem that Nonparty 1 acquired the ownership of the instant forest before receiving the assessment of the instant forest from Nonparty 4, etc., in sequence, prior to receiving the assessment of the instant forest. However, solely on the fact that part of the instant forest was installed and managed by Nonparty 1’s graves prior to the opening of the Japanese War, Nonparty 4 and its shipbuilding acquired the ownership of the instant forest. As such, Nonparty 1 cannot be deemed to have acquired the ownership of the instant forest before receiving the assessment of the instant forest (see, e.g., Supreme Court Decision 2011Du16858, May 10, 201).

B. In addition, the Land Survey Division on the Forest Land of this case did not state any point in the need thereof, and the Plaintiffs also did not submit all evidence on the situation that Nonparty 1 reported to the Agricultural and Fishing Forces along with the land register and the level of area of the forest land of this case within 3 years from January 21, 1908, which was enforced by the Samlim Law, or that it was proved that the ownership was obtained as prescribed by the Standards for Classification of State-Owned Property of Tang and Transboundary.

C. Even if Nonparty 1 filed a report on the instant forest pursuant to the Clim Act, or obtained a certification of ownership as prescribed by the Standards for Classification of State-owned Causes of Triland and U.S. Forest Areas, and entered the fact in the Land Investigation Board on the instant forest land, it is difficult to recognize that Nonparty 1 still acquired the ownership of the instant forest land prior to the commencement of the Korea War, on the sole basis of Nonparty 1’s report, etc. under the Clim Act, given that the said report pursuant to the Clim Act or the said certification of ownership was made after the commencement of the Korea War, since it was also after the commencement of the Korea War (see, e.g., Supreme Court Decisions 2010Du28335, Mar. 28, 2013; 2010Du9563, Apr. 11, 2013).

D. In light of the fact that Nonparty 1, who is a pro-Japanese and anti-national offender, worked as the vice-con of the Japanese president of the Japanese War at the time when he was investigated, and Nonparty 1 acquired the forest of this case by the circumstances, he succeeded to the ownership of the forest of this case to his collateral blood relatives instead of his lineal descendants, and the grave of Nonparty 1, who is a pro-Japanese and anti-national offender, was installed before the opening of the Japanese War. Nonparty 1’s grave of this case was up to five days for the grave of this case, and all these five days for the grave of this case were installed only at the 1,948 square meters of the forest of this case, the forest of this case, which was divided from the forest of this case, acquired by Nonparty 1, a pro-Japanese and anti-national offender, is presumed to be pro-Japanese property pursuant to the presumption Clause of this case, notwithstanding the situation that the court below had passed.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the presumption of pro-Japanese property under the instant presumption provision with respect to forests and fields was broken after the division. In so doing, the lower court erred by misapprehending the legal doctrine on the presumption clause without any evidence or by misapprehending the legal doctrine on the presumption clause, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)