(영문) 서울고등법원 2015.5.28. 선고 2014누7895 판결

The Defendant’s revocation of decoration for the persons of distinguished services to the national independence against the deceased B as of April 19, 2011 shall be revoked. [The Plaintiff was the Defendant of the original Defendant Litigation Intervenor (hereinafter referred to as the “ Intervenor”) but the Defendant was corrected to the President at the trial after remanding the case.]

2. Purport of appeal (the defendant before correction: the intervenor);

The judgment of the first instance against the defendant before its rectification is revoked, and the plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

Each entry of Gap evidence Nos. 1 through 3, 8, 9, 11, 12, Eul evidence Nos. 1 through 14, 18 (including paper numbers; hereinafter the same shall apply) is acknowledged as follows in full view of the purport of the whole pleadings.

[1]

0 around July 1990, the Intervenor drafted a public protocol on the Plaintiff’s referred B.

The contents of the above public protocol, in order to spread, from November 1929, the release of detained students, who were the victim of Gwangju student movement, as a national public opinion on November 1, 1929, the contents of the above public protocol were as follows: (a) in order for B to be active in Seoul, he was able to receive imprisonment for 2 years and 6 months; and (b) it was recognized that he was able to receive the garment from the victim of the Order of Merit of the National Foundation.

○ Accordingly, the defendant awarded the Order of Merit to B on August 15, 1990.

[2]

B died on January 1, 1991. After that, around March 2004, the Special Act on the Fact-finding of Pro-Japanese and Anti-National Acts was enacted, and around December 2009, the Korean Institute of National Issues of Incorporated Association published 4,389. B (hereinafter referred to as "the deceased") was included in the pro-Japanese list.

○ On November 11, 2010 and November 15, 2010, “The First and Second Review Committee for the Revocation of the decoration for the Deceased, who belongs to the Intervenor, decided to revoke the decoration for the Deceased.” On April 5, 2011, the State Council decided to revoke the decoration for the Deceased.

○ Accordingly, the Defendant, through the Intervenor on April 19, 201, notified the Plaintiff of the decision to revoke the decoration of the persons of distinguished services to the national independence (hereinafter “instant disposition”). The specific grounds for the instant disposition are as follows.

In light of the aforementioned legal principles, “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” and “B” respectively

2. Whether the disposition is lawful;

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful on the ground of the above disposition. Accordingly, the plaintiff asserts that the disposition of this case is unlawful on the ground that the behavior of the deceased does not constitute grounds for revocation of decoration.

B. Relevant statutes

Article 2 (Principle of Decoration) of the former Act on the Decorations and Decorations (amended by Act No. 10985, Aug. 4, 2011) shall be awarded to a national of the Republic of Korea or a national of the Republic of Korea who has rendered outstanding meritorious services in the Republic of Korea.

Article 8 (Cancellation, etc. of Decoration)

(1) If a person who has been awarded a decoration falls under any of the following subparagraphs, the relevant decoration shall be revoked, and the decoration and related articles and money which have been awarded shall be recovered, and any foreign decoration shall be prohibited from wearing it:

1. Where it is found that the relevant decoration is false;

C. Relevant legal principles

Under Article 2 of the former Awards and Decorations Act, the decoration and medal of the Republic of Korea confers a person who has rendered outstanding meritorious services to the Republic of Korea as a national of the Republic of Korea or a native country. It does not merely have the nature of a beneficial act to the person himself/herself, but also has the character of enhancing pride of the State and the nation in respect of the general public and integrating and presenting national values by granting honor to a person who has rendered outstanding meritorious services to the State (see Supreme Court Decision 2013Du2518, Sept. 26, 2014). Furthermore, the determination on the " obvious meritorious services to the Republic of Korea," which is the reason for granting a decoration, is made by comprehensively evaluating the behavior of the person subject to a decoration, as well as the individual facts indicated in the written public assistance submitted by the person who has recommended the decoration and decoration. Meanwhile, Article 8 (1) 1 of the former Awards and Decorations Act provides for the revocation of the decoration and decoration system where it is found that the relevant reason has occurred.

In full view of the provisions on the principles and revocation of a decoration as well as the legislative purpose thereof, “where it is found that the achievement of a decoration, which is the reason for revocation of a decoration, is false,” not only cases where the fact of the official fact investigated at the time of granting a decoration, but also cases where it is newly discovered that it was not revealed at the time of granting a decoration, but also cases where it is objectively obvious that the performance of a person subject to a decoration could not be recognized as a public service as to the relevant decoration, when comprehensively assessing the facts revealed at the time of examining the decoration, if the facts were revealed at the time of granting the decoration, as a whole.

D. Facts of recognition

In this case, the following facts are recognized in relation to the deceased's records in light of the overall purport of the arguments in the statement Nos. 2 and 20.

1) The research leading of friendship ideology and the executive activities of a magazine;

가) 친일연구기관 위원으로 「독기(緣旗)』 발간에 참여

망인은 전남 광주에 소재한 동아협화이념연구소(東亞協和理念硏究所) 설립위원회의 간부인 위원으로 활동하였다. 위 위원회는 월간 『독기」를 발간하여 민중에 대한 황도 정신(皇道精神)의 양양 및 시국인식 철저에 노력하였다.

나) '동양지광사(東洋之光社)'의 경리부장으로 활동 망인은 친일 잡지 『동양지광(東洋之光)」을 발행하는 '동양지광사'의 회계와 재정을 총괄하는 경리부장의 직책을 맡고 있었고, 1939. 9. 10. 동양지광사가 개최한 부인 간담회에 참석하여, 내선일체(內鮮一體)의 일환으로 일본인과 조선인을 결혼하게 하는 방안이 제시되자, "생활 수준의 차 때문에 왕왕 무리한 결과가 있는 것 같습니다. 일반화하기 위해서는 이러한 문제도 고려해 보아야 할 것 같습니다."라고 발언하였다.

(ii) the general discussion of co-operation in the Green Franchising Act and the East Mine Act;

A) The spool of megady on board

The Deceased, published on September 1939, puts the following arguments on the title “assumptive type of mission in the Green (No. 9 of title 4)”:

Japan is a happy of the fact that he is born as a Japanese person. On the other hand, on the other hand, Japan will audit the fact that he can enjoy his life in Japan at the world's opening of the world.In order to be able to fully and clearly recognize this fact and to cultivate the ability to implement it. It is flickly thought and try to think about how the Joseon will be happy. If the Joseon is not happy, Japan with its purpose is not even happy in the world peace.

B) Publicity and praises for Japan's astronomical agents

망인은 1939. 7.부터 1939. 11.까지 발간된 『동양지광」(제1권 제7호부터 제11호까지)에 황도조선(皇道朝鮮) (一)~(五))이라는 제목으로 아래와 같은 내용의 논설을 기고하였다.

일본의 천황은 그 토대를 ... 일본이라는 국체의 실체인 생명적 기본 사회에 두고 있다.인류사회가 그 생명을 종식하지 않는 이상 (천황제는) 영구적이다. 일본이 만세일계(萬世一系)의 천황을 받들고, 이 천황정치가 미래에도 무궁할 것이라는 근거가 바로 이것이다.이 사해동포의 대승적 입장은 다른 민족도 동일시하는 팔굉일우(八一宇: 온 세상이 하나의 집이 됨)라고 하는 세계주의로 발전해 왔다. ... 조선의 해결과 행복은 이 주의와 결합하여 세계적으로 그 실현을 수행하는 가운데 해결될 수 있다. .... 이 아름다운 이상에 반대하는 것이 조선이라 한다면 민족적 편견이며, 일본인이라 한다면 천황의 정신을 배반하는미완성의 신민이다.

C) The Japanese people's assertion of friendship

망인은 1940. 1. 발간된 「동양지광』(제1권 제12호)에 「동아선각지사기 전의 독후감(東亞先覺志士記傳)讀後感)>이라는 제목으로 아래와 같은 내용의 논설을 기고하였다.

For this reason, the Joseon has been rush under the 500-year so harsh politics that it could not be seen in the world. Accordingly, it has been confused as to whether it would lose its full independence and take an attitude in the Chinese Russia's market in Mussia in the Republic of China. As a result, it would be reasonable to view that two ethnics were integrated into one another in the best way. This is because two ethnics are either one (one) nor one (one (one) the future will come.

E. Determination

1) As stated in the above facts, the deceased's voluntary and leading participation in the East Asian Society Research Institute, which is a pro-Japanese organization, and the deceased's pro-Japanese magazine, such as the Green Cross Act and the Dong Yangyang-dong District Act, and made a fluorous act by advertising the Japanese people's friendship (each of the descriptions of the evidence Nos. 9, 14 through 16, and 18 of the deceased is insufficient to reverse the above recognition, and no other counter-proof is found). Meanwhile, even if the deceased's public action was found at the time of giving a decoration to the deceased, it can be said that the deceased's public action under Article 8 (1) 1 of the former Awards and Decorations Act was legitimate because there was no meritorious deeds that could be evaluated as subject to decoration, and thus, it can be said that the deceased's public action was not found that there was a legitimate cause for cancellation of decoration by the deceased's pro-Japanese act under the Framework Act on the Promotion and Decorations of the Korean Film and Truth, which was established by the Presidential Decree.

3. Conclusion

Therefore, the plaintiff's claim against the defendant corrected in the trial room is dismissed as it is without merit. It is so decided as per Disposition.