[1] Whether the “acquisition” of the property referred to in Article 2 subparag. 2 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State includes a case where ownership is acquired due to the circumstance (affirmative) through the land and forest survey project (affirmative), and whether the circumstance includes a case where the ownership is acquired by trust to a third party (affirmative)

[2] 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

[1] The Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State (hereinafter “Act”) stipulates the acquisition period of pro-Japanese property from the beginning of the Korean War (1904) even after the implementation of the land survey project and forest survey project after 1910, which is understood as the basis of the creation of ownership in a modern sense. This premises that there is a case where pro-Japanese and Anti-National Acts have already acquired the substantial control over property in cooperation with the deprivation of Japanese colonialism before there was a situation by the land and forest survey project. Considering the above point, the “acquisition” of the property referred to in Article 2 Subparag. 2 of the Act includes not only the acquisition of ownership due to the circumstance through the land and forest survey project, but also the acquisition of ownership by the trust of the name of the situation to a third party.

[2] In order to reverse the presumption power under Article 2 subparag. 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 submitted a counter-proof of the court's conviction as to the premise that the time of acquisition of the property is the death from the time of the Russ/Japan to August 15, 1945, and the existence of a fact against the presumption that the property acquired during that period is the consideration for pro-Japanese acts should be attested.

[1] Article 1 and 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 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State, Article 288 of the Civil Procedure

[1] [2] Supreme Court Decision 2010Du28335 Decided March 28, 2013, Supreme Court Decision 2011Du31390 Decided May 23, 2013 (Gong2013Ha, 1119) / [1] Supreme Court Decision 2009Du11454 Decided March 28, 2013 (Gong2013Sang, 760)

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)

Seoul Central District Court Decision 2011Na14939 Decided January 17, 2014

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. As to the grounds of appeal Nos. 1 and 3

A. Article 2 Subparag. 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborators to the State (hereinafter “Act”), and Article 2 Subparag. 2 of the Act on the Reversion of Property of Pro-Japanese Collaborators to the State (hereinafter “the Act”) provides that “Japanese property” means the property acquired by pro-Japanese actors to cooperate with the Japanese colonialism from the commencement of the seizure of national rights to August 15, 1945, or inherited property or inherited property with the knowledge that they are pro-Japanese property. In such cases, the property acquired by pro-Japanese during the period from the commencement of the war to August 15, 1945 shall be presumed to be the property acquired in return for pro-Japanese act.”

However, Article 1 of the above Act provides that the legislative purpose of this Act is to realize justice, establish a regular national spirit, and realize the constitutional ideology of the 3.1 movement, which is resistanceed against the Japanese rule, by having the anti-national act in cooperation with the colonial rule of Japanese colonial rule, and fluoring our nation, reverted to the State. Meanwhile, the land research project and forest research project in the Japanese colonial rule, which is understood as the basis of the establishment of ownership in the modern sense, are prescribed from the beginning of the Korean War (1904), even though the period of acquisition of pro-Japanese property was enforced after 1910, the above law has already been implemented since the commencement of the Korean War (1904), and it is premised on the fact that there was a case where pro-Japanese anti-national act has already acquired the substantial control over property in cooperation with Japanese colonial rule. Considering the above, the presumption provision of this case includes the case where it is reasonable to see that the person acquiring the ownership of the land through the name of the Korean government, and the case where he has acquired the ownership through the title 3013.

B. According to the reasoning of the judgment below, the facts established by the court below are as follows.

① On June 10, 1921, Nonparty 1, who is the father of the Plaintiff, decided to borrow funds from the Dongyang-type Co., Ltd. in the name of Nonparty 2, Nonparty 3, and Nonparty 43 for the purpose of arranging personal debts, and was given a trust with the said three persons on the land before the instant subdivision in order to provide it as security.

② Since then, the Plaintiff inherited Nonparty 1’s property as a family heir, including the land before the instant partition.

③ On December 14, 1954, the registration of transfer of ownership in the name of Nonparty 5 was completed in the name of Nonparty 5 due to the “Recovery” as the date of receipt, receipt number, and cause of the previous registration was known, respectively. On July 31, 1965, the registration of transfer of ownership was completed due to the termination of the contract on May 24, 1965 under the name of the Plaintiff.

④ The land prior to the instant subdivision was destroyed by the forestry cadastral book, and became nine parcels outside the instant land due to the change of the name of the administrative district and the division after the cadastral restoration on August 8, 1967.

⑤ On March 28, 2006, the Plaintiff sold the remaining shares of 1,809,478/1,855,336 shares to a third party except for the instant shares among the instant land, and completed the registration of ownership transfer on May 12, 2009.

6. On May 22, 2009, the Investigation Committee on Property of Pro-Japanese Collaborators to the Republic of Korea decided that Nonparty 1 constitutes pro-Japanese and anti-national actors subject to the reversion of property to the State, and that the portion of this case among the land in this case constitutes pro-Japanese property subject to the reversion to the State.

7) Accordingly, the defendant completed the registration of ownership transfer of this case on July 23, 2009 due to the reversion of the State on June 10, 1921.

C. Examining the above facts in light of the legal principles as seen earlier, the land prior to the division of this case was actually controlled and managed by Nonparty 1 and the Plaintiff, who was the inheritor, after Nonparty 1 was entrusted with the name of Nonparty 2, etc., and was in fact controlled and managed by Nonparty 1 and the Plaintiff, who was the inheritor. Thus, the land prior to the division of this case constitutes the property acquired by Nonparty 1, who was the pro-Japanese and anti-national actors within the period

Therefore, the part that the court below held that Nonparty 1 acquired the land before the subdivision of this case was erroneous, but it is justifiable to have determined that the share of this case among the land of this case was presumed to have been acquired as a compensation for friendship pursuant to the presumption clause. Contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the meaning or scope of application of the presumption clause of this case, violation of the Constitution, failure of deliberation, omission of judgment, etc.

2. Regarding ground of appeal No. 2

A. In order to reverse the presumption of evidence under the instant presumption provision, the existence of a fact against the presumption that the time of acquisition of property is deceased from the time of the Russ/Japan War to August 15, 1945 should be proven (see, e.g., Supreme Court Decision 2010Du2835, Mar. 28, 2013).

B. According to the reasoning of the judgment below, the court below determined that, in light of the following circumstances, the fact that the steel type moved to the cemetery of Jeonyang-gun, Jeoncheon-gun, the boundary of which was set at 300 square meters around all directions, and that the land was acquired prior to the instant subdivision between August 15, 1945 and the time from the opening of the Rus/Japan War until August 15, 1945, the above recognition was insufficient, and there was no other counter-proof, and the non-party 1 offered the land before the instant subdivision to the Dongyang-type Co., Ltd. for the purpose of debt settlement, and the fact that the land was assessed before the instant subdivision was entrusted to the non-party 2, etc., and the evidence submitted by the plaintiff alone was insufficient to recognize that the land before the instant subdivision was not the price for the pro rata act.

Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal doctrine on the reversal of presumption of pro-Japanese property, or by omitting any contradiction or judgment

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)