Plaintiff (Law Firm LLC, Attorneys Park Gi-sung et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm, Kim & Lee LLC, Attorneys Han-soo et al., Counsel for the defendant-appellant)

November 22, 2013

Seoul Central District Court Decision 2010Kadan207337 Decided February 18, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall implement the procedure for the cancellation registration of ownership transfer registration (hereinafter referred to as the "registration of this case") completed under the receipt No. 28837 of July 23, 2009 with respect to the share of 45,858/1,855,336 square meters (hereinafter referred to as the "share of this case") among the 1,855,336 square meters of forest land ( Address 1 omitted) in Seocheon-si (hereinafter referred to as the "the land of this case") to the plaintiff.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged in full view of the following facts: Gap evidence Nos. 1, 2, 7, and 15-1, 2, Gap evidence Nos. 3 and 48-1, 2, 3, Gap evidence Nos. 4, 6, 8 through 14, 17, 47, 50, 65, 66, Gap evidence No. 5-1 through 17, Eul evidence No. 1-21, 2-2, 8-2, Eul evidence No. 8-2, 12, 13, Eul evidence No. 14-2, 3, and 4-2, 3, and 4-4.

(a) Burial of a tombstone to a tombstone in the Korean War;

(1) The Jeonyang-gun: (a) died in 1844; (b) died in 1849; (c) was Young-gun; (d) was Young-gun; (c) was Young-gun, Cheongyang-gun, Cheongyang-gun, Mayang-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-gun, Mapo-

(2) On August 15, 1849 (Franchising 1849), the Chosung-gun's funeral room consisting of "Yeongcheon-gun, under Dong-dong, mountain light, south Samcheon-dong, and North Korea," and the funeral room, which is a loan for the full-sea, is divided into "Yeyang-dong, Samcheon-dong, Samcheon-dong, South, North Korea, a large scale of glass for North Korea," and the field loans (referred to as "Yedong-dong-dong, one another, and the other, the other, the other, the other, the other, the other, the other, the other, the other, the other, and the other, the other, the other, and the other, the other, the 30 meters of each of the above funeral grounds are 10 meters of each, the boundary of 16 meters of each, respectively, and 18 meters of each of the above funeral grounds is 16 meters of each, respectively.

(3) On November 19, 1855 (Jinchi 6), the spawn Jin-gun was set down in the Ginchial spathal spathal spathal spathal spathal spathal spathal spathal spathal spathal spathal. The boundary was recorded as the 300 old-dong spathal spathal spathal spathal spathal spathal spathal spathal spathal spathal spathal, 300 South and North Korea spathal spath spath spath spath spath spath

B. Nonparty 1’s decision on Nonparty 1’s criminal records and pro-Japanese act

(1) The non-party 1 was the 5 years of age in the Jeonwon-gun(s) and was appointed as the Mangyeong-gun(s) Sejong on March 14, 1907. On June 4, 1910, the non-party 1 was sealed to the Cheonggyeong-gun(s) loans, and the non-party 1 was roundeded to the Cheonggyeong-gun(s) loans on August 25, 1910.

(2) On August 29, 1910, immediately after the merger of Korea, Japanese colonialism (hereinafter “Japan”) enacted and implemented Joseon Order under Article 14 of the Yellow Sea Decree pursuant to Article 5 of the Korea-Japan Merger Treaty, which provides that “I shall award a work to Korean people who have rendered distinguished services to the Japanese colonial rule, especially those who are considered appropriate for commendation, and shall grant a prize to them,” and Article 2 of the Decree on the Domination of Korea provides that “I shall be granted to the Korean people who have rendered distinguished services to the Japanese colonial rule, who are currently the current blood relatives of king and who do not receive the honorable treatment of Yellows, or who have rendered distinguished services to the Korean people who have rendered distinguished services.”

(3) On October 7, 1910, Nonparty 1 received KRW 168,00,00 from the Japanese government bonds on January 13, 191, after being subject to an act of subsequent work, which is the highest position among the Japanese government bonds, pursuant to Article 2 of the Decree on Shipbuilding. On August 15, 194, Nonparty 1 received the Korean government bonds of KRW 168,000. On August 1, 1912, 1912, on the ground that “it has contributed to the previous one-day relationship.” On December 7, 1912, Nonparty 1 continued to raise a higher grade after being served on the Japanese government’s order on December 5, 1912, and came to enjoy the status and privilege of ar until August 15, 1945.

(4) On November 4, 1910, Nonparty 1: (a) on behalf of the Joseon Dynasty, on behalf of the Joseon Dynasty, took the personnel management of the auditor for the commission; (b) on December 25, 1910, Nonparty 1 visited Nonparty 7’s classical supervisor to conduct the audit for the commission; and (c) on April 12, 1914, Nonparty 1 participated in the ASEAN, following the death of the Japanese classical supervisor.

(5) From January 16, 1915, Nonparty 1 served as the advisor of the office of the Madsan Association, which was organized under the cooperation and support of the Japanese system. From February 21, 1917 to Nonparty 8, Nonparty 1 served as the advisor of the Madsan Association, which was established by Nonparty 8, etc.

(6) On November 10, 1928, Nonparty 1 received a fire brigade commemorative hall from Japan, which actively cooperated with colonial rule. On June 20, 1940, Nonparty 1 received a reward by contributing KRW 1,000 to the new fund for the construction of the Seodaemun-gu Police Station and the Gyeongsung Fire Station, which was first called the 2600 Franchisium in 1940, which was first called the Franchisium in 1940. around October 1940, Nonparty 1 received a KRW 1,00 from the Franchisium in 1941 to the Franchisium in 1941. Nonparty 1 participated in the 195 Dominchisium in the 1945 Dominsium in 1945.

(7) On the other hand, on November 12, 2007, the Pro-Japanese Committee for the Finding the Truth of Anti-National Acts (hereinafter “Fact-Finding Committee”) decided to select Nonparty 1 as a person subject to investigation of anti-national acts pursuant to Article 19(1) of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (hereinafter “The Fact-Finding Act”), and decided on May 11, 2009, Nonparty 1’s following acts as anti-national acts.

(A) The maintenance of Nonparty 1’s act committed after the Japanese colonial rule on October 7, 1910 and the act was performed on August 15, 1945 by the Japanese colonial rule constitutes “the act committed or succeeded to by the Japanese colonial rule” under Article 2 subparag. 7 of the former Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (amended by Act No. 11494, Oct. 22, 2012; hereinafter “former Fact-Finding Act”).

(B) From July 1939 to July 1939, Nonparty 1: (a) took part in the deliberation members of the National Assembly for Mobilization of the Korean War, which is an exhibition control organization organized by the Ministry of the Japanese General Affairs with various government organizations and non-governmental organizations; and (b) took part in the deliberation members of the Korean National Assembly for the largest period of time during which the National Assembly for Mobilization of the Korean War was expanded and revised from November 1, 1940 to May 1942, 1942, it constitutes “the act of actively cooperating with the colonial rule and aggressive war of Japanese colonialism as the head or executive members of the major external government organization of the Japanese colonialism” as prescribed by Article 2 subparag. 17 of the Fact-Finding.

(C) On January 13, 1911, Nonparty 1, who was recognized as having contributed to the merger between Korea and Japan on January 13, 1911, and received 168,000 won Government Bonds of 168,00 won, and was recognized as having contributed to the commission and death of persons who have contributed to the relationship between Korea and Japan on August 1, 1912, and received 'the person who contributed to the commission and death of persons who have contributed to the relationship between Korea and Japan', and each letter of order on December 5, 1912 on December 14, 1916, 195, constitutes "the act of remarkably cooperating with the Japanese colonial rule as defined in Article 2, Article 19 of the Fact-Finding Act."

(8) On November 30, 2009, the Plaintiff filed a lawsuit against the Truth-Finding Committee (the Minister of the Interior and Safety succeeded to the authority of the above decision) seeking revocation of the above decision (the case of revocation of the disposition of revocation of the decision of reversion to the State by the Seoul Administrative Court), and the above court accepted the above claim partially on December 23, 2010, and rendered a judgment dismissing the request for revocation of the decision of pro-Japanese act as to the acts listed in the above (7) (b) and (c) and dismissed the request for revocation of the decision of pro-Japanese act as to the acts listed in the above (7) (a).

C. Registration of transfer of ownership in the Plaintiff’s name;

(1) On November 24, 1920, Nonparty 2, Nonparty 3, and Nonparty 4 (hereinafter “Nonindicted Party 2, etc.”) borrowed funds from the king Minister’s guarantee from the Dongyang-type Co., Ltd. to repay the above debts, and changed the ownership of the real estate owned by Nonparty 1 to Nonparty 2, etc., and offered them as security to the above company. However, when the above loans have been fully repaid, a written statement containing the change of Nonparty 1’s name with the consent of the Lee Jong-gu Office.

(2) On May 12, 1921, Nonparty 1 and Nonparty 2, etc. drafted a letter of entrustment in receipt of harvest, which is to receive and dispose of the harvest of the answer offered as security, directly with Nonparty 10, the Minister of Foreign Affairs, as above, from Lee Jong-man.

(3) On June 10, 1921, Nonparty 1 entrusted Nonparty 2, etc. with the name of Nonparty 1, etc. on June 10, 1921, and was under circumstances, Nonparty 1 was able to receive a 192-Nomencla 92-Nomen 192 forest land ( Address 2 omitted) and 192-nomen 9 (hereinafter “the land before the instant partition”).

(4) On February 25, 1929 (Fire 4), Nonparty 1 completed the registration of ownership transfer between Nonparty 2, Nonparty 4, and Nonparty 11 on the real estate transferred under the name of Nonparty 2, etc. according to the above written statement, and prepared an agreement containing the content of Nonparty 1’s completion of the registration of ownership transfer with respect to the said real estate when the debt owed to the said company was fully repaid and the debt owed to the said company was extinguished.

(5) After the outbreak of the Korean War on June 25, 1950, Nonparty 1 was missing on October 10, 1958, and was deemed deceased on August 1957, 1957. Accordingly, the Plaintiff, a senior grandchild, was the sole heir of Australia, inherited Nonparty 1’s property, including the instant land before the division ( Nonparty 12, the president of Nonparty 1, a head of Nonparty 1, died on November 15, 1943 (Fire 18)).

(6) On December 14, 1954 (short-term 4287), the date of receipt, receipt number, and the date of cause of the former registration was known, and the registration of transfer of ownership was completed in the name of the Minister of king in the name of the restoration. The Plaintiff completed the registration of transfer of ownership on July 31, 1965, which was due to the termination of the contract.

(7) The land prior to the instant partition was destroyed by the forest land register, and was cadastral restoration to 1,913,653 square meters of risan 38,00,000,000, and thereafter became nine parcels outside the instant land due to the change of the name of the administrative district and the division.

(8) On May 12, 2009, the Plaintiff completed the registration of ownership transfer for reasons of sale on March 28, 2006 with respect to the portion remaining 1,809,478/1,855,336 (=1-45,858/1,855, 855,336) out of the land of this case with the exception of the instant shares.

(d) A decision to revert pro-Japanese property to the State;

(1) On December 8, 2006 and January 12, 2007, the Investigation Committee on Property of Pro-Japanese Collaborators (hereinafter “Property Investigation Committee”) decided to commence an investigation into two hundred parcels of land owned by the Plaintiff, on the ground that there are reasonable grounds to recognize that the property falls under the property of pro-Japanese and Anti-National Collaborators pursuant to Article 19(1) of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts (hereinafter “Special Act on the Reversion of Property for Pro-Japanese”) and that the said property constitutes the property of pro-Japanese and Anti-National Collaborative Acts (hereinafter “Property Reversion”).

(2) The Plaintiff filed an objection against the portion of the instant land, other than the instant land, and the property investigation committee partially accepted the said objection on June 15, 2007, and rendered a decision to dismiss the remainder of the land, including the instant land, on the ground that ( Address 3 omitted) forest land and 721m2, and 56m2, other than the instant land, fall under the death where steel spawned down, among the order of commencement of the investigation as of December 8, 2006, on the ground that the said objection was partially accepted, and the said decision was made.

(3) On November 22, 2007, the Property Investigation Committee decided on November 22, 2007 that the State shall vest in the land (road address 4 omitted) and 191 lots (except this case’s land) other than 24m2, a forest land and 191m2, which were located in the same property.

(4) On July 12, 2010, the Plaintiff filed a lawsuit against the Property Investigation Commission (the Minister of Justice succeeded to the authority to make the above decision) seeking the revocation of the above decision (the revocation of the disposition revoking the State Reversion Decision 2008Guhap7564, Seoul Administrative Court), and the above court rendered a judgment dismissing the above claim on June 5, 2009.

(5) The Plaintiff appealed against this and appealed (Seoul High Court 2009Nu19658). On May 27, 2010, it is difficult to view that Nonparty 1’s act was one-day merger, and thus, Nonparty 1’s judgment was revoked and the said decision was revoked on the ground that the above decision was unlawful on the premise that Nonparty 1’s act constitutes “pro-Japanese and anti-national act that belongs to the State,” under Article 2 subparag. 1(a) of the former Special Act on the Asset Ownership (amended by Act No. 10646, May 19, 2011; hereinafter “former Act”) and Article 2 subparag. 7 of the former Act on the Truth of Realty, on the ground that the said decision was unlawful, on the ground that the Property Investigation Committee appealed to this and appealed (Supreme Court Decision 2010Du12576, Oct. 28, 2010).

(6) The Supreme Court Decision that revoked the determination on the reversion of pro-Japanese property to the State in cases where the act was not caused by the merger between Korea and Japan was adopted, and the National Assembly promulgated each of the above legislative bills on May 19, 201 and October 22, 2012, by revising Article 2 Subparag. 1 of the former Act on the Reversion of Pro-Japanese Property and Article 2 Subparag. 7 of the former Fact-finding Act as follows.

[former Act on the Reversion of Pro-Japanese Property]

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "pro-Japanese and anti-national actors to whom the property belongs to the State (hereinafter referred to as "pro-Japanese and anti-national actors")" means persons falling under any of the following items:

(a) A person who commits an act under any provision of subparagraphs 6 through 9 of Article 2 of the Special Act on Finding the Truth of Anti-National Acts under the Rule of the Japanese colonial Rule (including the sponsor's consent and side's consent for the proposal provided for in subparagraph 9): Provided, That the foregoing shall not apply to a person determined by the Investigation Committee on Pro-Japanese Collaborative Property under Article 4 due to a person who refuses, reflects, or participates actively in an independent movement after his/her refusal to commit an act;

【Parent Property Reversion Act】

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "pro-Japanese and anti-national actors to whom the property belongs to the State (hereinafter referred to as "pro-Japanese and anti-national actors")" means persons falling under any of the following items:

(a) Any person who commits an act under subparagraphs 6, 8 and 9 of Article 2 of the Special Act on Finding the Truth of Anti-National Acts under the Rule of Japanese Occupation (including the sponsor's and father's sponsor's sponsor's sponsor's sponsor's sponsor's sponsor's sponsor's sponsor): Provided, That even if he falls under subparagraph 9, a person determined by the Anti-National Collaborative Acts Property Investigation Committee under Article 4 as a person who has actively participated in an independence movement after he/she falls under such case, shall be excluded;

(b) A person who has received or succeeded to a commission from the Japanese system among pro-Japanese actors determined by the Finding Committee for Finding the Truth of Anti-National Acts under Article 3 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule: Provided, That even if a person falls under this, a person determined by the Investigation Committee on Pro-Japanese Collaborative Property under Article 4 as a person who refuses or reflects his/her commission of act, or actively participates in an independent movement thereafter, shall be excluded herefrom;

【former Fact-Finding Act】

Article 2 (Definitions)

For the purpose of this Act, the term "friendly and anti-national act" means any act falling under any of the following subparagraphs, which was committed from the opening of the war of Russ/Japan, during which the seizure of national sovereignty of the Japanese colonialism has started until August 15, 1945:

7. Receiving or succeeding to a commission by the contribution of a merger between Korea and Japan;

【Fact-Finding Act】

Article 2 (Definitions)

For the purpose of this Act, the term "friendly and anti-national act" means any act falling under any of the following subparagraphs, which was committed from the opening of the war of Russ/Japan, during which the seizure of national sovereignty of the Japanese colonialism has started until August 15, 1945:

7. Receiving or succeeding to a commission from the Japanese system: Provided, That this shall not apply to persons determined by the Committee for Finding the Truth of Pro-Japanese Acts under Article 3 as persons, etc. who refuse or reflect the commission, or actively participate in an independent movement after the death of such persons;

(7) The Plaintiff filed an application for adjudication of unconstitutionality with respect to the main sentence of Article 2 subparag. 1 (b) of the Act on the Reversion of Pro-Japanese Property, and this Court made a decision with respect to the adjudication of unconstitutionality with respect to the Constitutional Court. On July 25, 2013, the Constitutional Court made a decision that the said provision does not violate the Constitution (Article 2 subparag. 1 (b) of the Special Act on the Reversion of Property of Pro-Japanese Anti-National Collaborative Acts to the State, etc.).

(8) Meanwhile, on May 22, 2009, the Property Investigation Committee resolved on May 22, 2009 that the instant shares constitute pro rata property (hereinafter “instant decision”). Accordingly, on July 23, 2009, the Defendant completed the registration of the instant shares on the ground of reversion to the State on June 10, 1921, but the Plaintiff did not file an administrative appeal or administrative litigation against the instant decision pursuant to Article 23(2) of the Act on the Reversion of Pro-Japanese Property.

2. Determination on this safety defense

With respect to the Plaintiff’s claim against the Defendant for the cancellation of the registration of this case as to the instant shares, the Defendant did not file an administrative appeal or administrative litigation until 90 days after the Plaintiff was notified of the decision of this case by the Property Investigation Committee on May 2009, and filed the instant lawsuit only on November 26, 2009, and thus, the instant lawsuit is unlawful as it did not observe the period of filing the lawsuit, and thus, it is unlawful.

On the other hand, the issue of whether the shares in this case are pro-Japanese property can be revealed only after an accurate investigation of facts, and even if the defect of the decision in this case is serious, it cannot be deemed that the decision in this case is null and void automatically, and as long as the decision in this case is not likely to be cancelled because the plaintiff did not request an administrative appeal or institute an administrative litigation within 90 days after the plaintiff became aware of the decision in this case, it cannot be denied the validity of the decision in this case. However, the pro-Japanese property under Article 2 subparagraph 2 of the Pro-Japanese Property 2 of the Act does not belong to the State only only when the Property Investigation Committee must make a decision on reversion to the State, but it is retroactively owned by the State when the act of acquisition, donation, etc. was caused by the enforcement of the Pro-Japanese Property Reversion Act (see Supreme Court Decision 2008Du13491, Nov. 13, 2008).

3. Judgment on the merits

The plaintiff asserts that the defendant is obligated to implement the procedure for cancelling the registration of this case with respect to the shares of this case, which are not pro-Japanese property, since the registration of this case was completed for the invalidation of the cause attributable to the State.

Article 2 Subparag. 2 of the Pro-Japanese Property Reversion Act provides, “The pro-Japanese property” means the property acquired by a pro-Japanese and anti-national act person as a price for cooperation with the Japanese colonialism from the opening of the war of the day to August 15, 1945, or inherited property or property acquired as a testamentary gift, knowing that it is an inherited property or a pro-Japanese property. In this case, the property acquired by a pro-Japanese and anti-national act person as a price for pro-Japanese act shall be presumed to be the property acquired as a price for pro-Japanese act,” and “acquisition” under the above legal provision includes cases where the ownership is acquired at the original time due to the circumstance, and to reverse the presumption under the above legal provision: ① from the opening of the war of the day to August 15, 1945 to the day of the war of the day to August 15, 1945, the existence of the property should be proved to be 30 days prior to 200 days prior to the declaration of the fact that it had been acquired as a pro-Japanese or de facto 135 days prior to 14.

(2) On May 1, 209, it is difficult to recognize that Nonparty 1’s land was owned by Nonparty 4 and Nonparty 1’s non-party 1’s non-party 2’s non-party 4’s non-party 1’s non-party 5’s non-party 1’s non-party 1’s non-party 5’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 4’s non-party 1’s non-party 5’s non-party 1’s non-party 5’s non-party 1’s non-party 6’s non-party 1’s non-party 1’s non-party 2’s non-party 1’s non-party 3’s non-party 1’s non-party 1’s non-party

Therefore, the share of this case is a kind of property and is owned by the defendant retroactively at the time of its acquisition, and the registration of this case completed under the name of the defendant cannot be deemed null and void. Thus, the plaintiff's above assertion is without merit (the plaintiff is not a person who committed an act or succeeded to it in the process of merger by the plaintiff, but a person who committed an act or succeeded to it" under Article 2 subparagraph 7 of the former Fact-finding Act, and is not a "person of pro-Japanese who is subject to the State" under Article 2 subparagraph 1 (a) of the former Fact-finding Act. Thus, the registration of this case completed on the ground of the ownership of this case is deemed null and void of the cause. However, although the non-party 1 received the latter act from the Japanese occupation, it cannot be accepted since the non-party 1 did not constitute a "person of pro-Japanese and pro-Japanese who is subject to the State" under Article 2 subparagraph 1 (b) of the former Fact-finding Act. Thus, the plaintiff's above assertion cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

Judges Kim Il-il (Presiding Judge) dilution