(영문) 대구지방법원 포항지원 2013.11.28. 선고 2009가합1660 판결

The defendants jointly and severally pay to the plaintiffs 5% interest per annum and 20% interest per annum from the delivery date of a copy of the complaint of this case to the delivery date of the copy of the complaint of this case, and 5% interest per annum from the next day to the full payment date.

Reasons

1. Facts of the premise of dispute;

A. The outbreak of Japan's seizure of Korean Peninsula and the Pacific War

1) On August 22, 1910, Japan concluded the Korea-Japan Merger Treaty with the Republic of Korea on August 22, 1910, and subsequently controlled the Korean Peninsula through the Korea-Japan General Government.

2) Japan gradually entered the exhibition system by causing the Man-Japanese War in 1931 and the Japanese War in 1937. On December 8, 1941, Japan gradually caused the Pacific War.

3) On July 8, 1939, Japan enacted the National Disciplinary Ordinance (Ordinance No. 451) under the National Mobilization Act (Act No. 55 of Apr. 1, 1938) on July 8, 1939, when human resources and materials are insufficient due to a series of wars as described in paragraph (2) above (Provided, That in the case of colonial land such as the Korean Peninsula, it was actually applied from October 1, 1943 by Ordinance No. 600 of Oct. 1, 1943) as well as parts of flight equipment and steel scrap and steel scrap, and Korean residents residing in the Korean Peninsula with special functions such as vessel repair and moving to Japan (the first implementation was not enforced in the form of forced mobilization of Korean people, and continuous lack of human resources and materials due to the lack of military personnel and materials, and it was stipulated that the above-mentioned General Ordinance No. 1 of Korea Ordinance No. 8 of Apr. 8, 194, 199>

4) On August 6, 1945, the Pacific War was completely implemented by the atomic bomb from the Republic of Korea to the Republic of Korea, Japan on August 15, 1945, and the United States and the United States and the United States of America declared a conditionless uniform.

B. After the Pacific War was previously concluded, on September 8, 1951, 48 countries of the Union including the United States, the United Kingdom, etc. and Japan entered into the Grand Francco Treaty (hereinafter referred to as the "Convention") to resolve the issues of compensation before and after the date of the Pacific War. Article 4 (a) of the Convention provides that "the property of Japan and its citizens located in the areas provided for in Article 2 of the Convention including the Republic of Korea, claims against Japan and its citizens, claims against the governing authorities of the said areas and their citizens, claims against Japan and their citizens, and claims against Japan and its citizens shall be governed by special agreements between Japan and its governing authorities."

C. The process of national correction and the conclusion of treaties and treaties between the defendant and Japan

1) On October 21, 1951, through the preliminary conference on October 21, 1951, the first conference on February 15, 1952, following the opening of the first conference of the Republic of Korea and Japan on February 15, 1952, four subsidiary agreements were concluded on June 22, 1965, such as the Treaty on Basic Relations between the Republic of Korea and Japan and the Agreement on Economic Cooperation and the Settlement of Matters Concerning Property and Claims between the Republic of Korea and Japan (hereinafter referred to as the "Agreement on Claim for Claims"), the Agreement on Fisheries, the Agreement on the Legal Status and Treatment of Japan, the Agreement on Cultural Heritage and Cultural Cooperation, and the Agreement on Cultural Heritage and Cultural Cooperation.

2) 청구권협정은 제1조에서 일본이 우리나라에 10년간에 걸쳐 미합중국 통화(이하 생략한다.) 3억 달러를 무상으로 제공하고 2억 달러의 차관을 행하기로 한다는 내용과 아울러 제2조에서 아래 표 기재와 같이 정하고 있다(이하 피고 대한민국이 일본으로부터 받은 위 돈을 '경제협력자금'이라고 한다). 아래 합의의사록에 적시된 「한국의 대일 청구 요강, 8개 항목에는 일본으로 반출된 지금(地金), 지은(地銀) 및 조선총독부 체신국에 대한 각종 저금, 채권 등, 1945. 8. 9. 이후 일본인이 한국의 은행으로부터 인출해 간 예금액, 대체 또는 송금된 금품, 한국 법인의 재일 재산, 한국인이나 법인이 소유하고 있던 일본의 유가증권, 은행권 등과 함께 '피징용 한국인의 미수금, 전쟁에 의한 피징용자의 피해에 대한 보상, 한국인의 대(對) 일본국 정부 청구 은급(恩給) 관계, 한국인의 대(對) 일본인 또는 법인 청구'가 포함되어 있었다.

A person shall be appointed.

(d) Use of economic cooperation funds and establishment of defendant Scoopa Co., Ltd.;

1) The Defendant Republic of Korea enacted the Act on the Management and Management of Claim Funds on February 19, 1966 and uses funds free of charge for projects contributing to economic development (Paragraph 1). The Loan Fund shall be used for projects to promote agriculture, forestry and fisheries, introduce raw materials and services, and to expand infrastructure for small and medium enterprises, mining and key industries (Paragraph 2). Article 5 provides that "No later than August 15, 1945, Japan owned by the nationals of the Republic of Korea shall compensate out of the claim funds prescribed by this Act (Paragraph 1)." Article 4 of the Act on the Management and Management of Claim Funds on January 19, 197 provides that "the scope and period of claims subject to compensation, methods of examination of evidence, and other similar matters." Article 9 of the Act on the Report of Claim Claims by the Republic of Korea on December 21, 1974, the amount of claims against the deceased and the amount of claims against the deceased and the amount of claims against the deceased were not included within 700 million won per person under the Act.

2) Defendant Spanco Co., Ltd. (the trade name at the time of establishment was called 'Mapo Port Integrated Co., Ltd.', and the trade name was changed on March 15, 2002 as of March 15, 2002. hereinafter referred to as 'Defendant Spanco') was established on April 1, 1968. Defendant Republic of Korea used USD 119.5 million out of the economic cooperation fund in establishing Defendant Spanco in accordance with the procedures stipulated in Article 4, etc. of the Act on the Management and Management of Claim Funds and prescribed in the Enforcement Decree of the same Act. Of the free economic cooperation fund used for the establishment of the Defendant, USD 30.8 million out of the economic cooperation fund used for the establishment of the Defendant was replaced with the investment of Defendant Republic of Korea, and the amount of USD 8.7 million out of the paid economic cooperation fund was introduced as loans, and the Defendant repaid it directly.

(e) thereafter the administrative and legislative measures of Defendant Republic of Korea regarding support for forced mobilization victims, etc.

In 190, the Defendant Republic of Korea established the Nuclear Victims' Welfare Fund in 1990 and supported medical expenses, funeral expenses, etc. for the victims of the atomic Bombs, and on June 11, 1993, the Act on the Support for Livelihood Stabilization for the Victims of the Voluntary Mobilization in Japan, which was enacted on the Ministry of Japan and Japan under the Japanese colonial Rule, provides a livelihood stabilization support fund, etc. In addition, on March 5, 2004, the Defendant made efforts to investigate the truth of the damage from forced mobilization under the Japanese colonial Rule by enacting the Special Act on the Finding of the Truth of the Damage Caused by the Force Forced Mobilization in Japan, etc., and enacted the Act on the Support for the Victims, etc. of the Forced Mobilization in Foreign Countries before and after the Pacific War, and provided compensation to the victims of forced mobilization, their bereaved family members, etc. in relation to the Agreement on the Right of Claim.

After that, on March 22, 2010, the above two Acts were repealed, and the contents of the two Acts were integrated and supplemented, thereby enacting the Special Act on Support for the Investigation of Forced Mobilization during the Pacific War and the Victims of Forced Mobilization in Foreign Countries. In the aforementioned Act, the Special Act on Support for the Victims of Forced Mobilization before and after the Pacific War and the Special Act on Support for the Investigation of Forced Mobilization into Force Forced Mobilization during the Pacific War and the Victims of Overseas Forced Mobilization into the current currency, the amount of the outstanding amount that the victims did not receive from the Japanese enterprises at the time of the War is defined as KRW 2,000 in the currency of the Republic of Korea as of the date

F. The plaintiffs' status

1) The victims of forced mobilization of the table below mentioned in the column of "victims of forced mobilization of the table" were mobilized abroad, such as military personnel, civilian workers in the military service, Japan, New Don, Southyang-gun, Manaa, etc., and were killed or went missing abroad during the period of Japanese demotion. The plaintiffs are those related to their spouses, children, grandchildren, and kys, etc., established under the jurisdiction of the Prime Minister pursuant to Article 3 of the Special Act on Finding the Truth of Damage from Force Mobilization of Force Mobilization under the Japanese colonial Rule, and reported damage to the Finding Committee established under the jurisdiction of the Prime Minister. According to the above report, all members of the deceased in the column of "victim of forced mobilization of the table" stated in the column of the above "victim of forced mobilization of the table" were forced to act as victims of forced mobilization of the Japanese colonial Rule (hereinafter referred to as "victim of forced mobilization"), the victim's family members other than the plaintiff 1 and the plaintiff 2, the plaintiff were forced to act as victims of the above case, the plaintiff 1 and the plaintiff 32.

A person shall be appointed.

* The network H received this.

2) According to Article 8 of the former Act on Support for Victims of Compulsory Mobilization before and after the Pacific War, the "Date of Decision" was determined as the victims and victims of forced mobilization under the above Act, and at the same time, the aforementioned victims are entitled to receive the compensation money and the outstanding amount of the compensation money indicated in the "Compensation Money" column, respectively, on each date indicated in the "Date of Decision" as the "Date for Support for Victims of Voluntary Mobilization Mobilization before and after the Pacific War". At the same time, the aforementioned victims were determined as the victims of forced mobilization and victims of forced mobilization, excluding GoN, AE, and the victims of forced mobilization under the above Act, and the victims are entitled to receive the compensation money and the outstanding amount of the compensation money indicated in the "Compensation Money" column to the bereaved family members of the victims of forced mobilization. The remaining victims (However, Plaintiffs C, D, E, F, and G, who were the decedents of the victims of forced mobilization, and H, who were the victims of forced mobilization, individually or jointly with other bereaved family members.

[Ground of absence of dispute, evidence 1-3, evidence 1-1-2, evidence 2-1-3, evidence 2-1-3, evidence 2-1-3, evidence 2-1-2, evidence 2-1-3, evidence 2-1-3, evidence 2-1-2, evidence 2-1-3, evidence 2-1-3, evidence 2-1-3, evidence 2-1-3, evidence 2-1-3, evidence 2-1-3, evidence 2-1-3, evidence 1-4, evidence 2-1-2, evidence 3-1-3, evidence 2-1-3, evidence 2-1-2, evidence 2-1-3, evidence 3-1-4, evidence 2-1-3, evidence 1-2, evidence 2-1-3, evidence 2-1-3, evidence 2-1-2, evidence 2-1-3, evidence 2-1-3, evidence 2-1-1-3

2. The assertion and judgment

A. Claim against Defendant Republic of Korea

1) Liability for damages under Article 2 of the State Compensation Act

The Plaintiffs, as their bereaved family members of the victims of forced mobilization abroad, were the outstanding claims, such as damages and wages, against Japanese and Japanese companies. However, the Defendants agreed to waive their individual claims against Japanese and Japanese companies, instead of receiving the paid and free economic cooperation funds from Japan in concluding the Korea-Japan Correctional Treaty in 1965, thereby making it impossible for the Plaintiffs to exercise their respective claims individually against Japanese and Japanese companies. This constitutes “where a public official, as prescribed in Article 2 of the State Compensation Act, causes damages to others by intention or negligence in violation of the statutes in performing his/her duties.” As such, Defendant Republic of Korea is obligated to compensate the Plaintiffs for damages therefrom.

2) Duty of return of unjust enrichment

Although the economic cooperation funds received from Japan as a result of the conclusion of the Agreement on Claims, the Defendant Republic of Korea included the claims for damages and other receivable amounts to be reverted to the Plaintiffs, the Defendant Republic of Korea obtained profits without any legal grounds by using them for economic development, etc. without obtaining the consent of the Plaintiffs. Accordingly, the Defendant Republic of Korea is obliged to return the money equivalent to the Plaintiffs’ claims to the Plaintiffs as unjust enrichment.

3) Liability for damages due to default

The Defendant Republic of Korea has an obligation to pay reasonable compensation to the Plaintiffs pursuant to Article 23(3) of the Constitution, since it has the same effect as accepting the Plaintiffs’ property by public necessity, such as “the normalization of Japan and Japan” or “the securing of funds for economic development.” Since the Defendant Republic of Korea does not have paid reasonable compensation to the victims of forced mobilization, the amount of subsidization prescribed by each Act for the provision of consolation money and outstanding amount, etc. for the victims of forced mobilization falls short of the amount of subsidization, Defendant Republic of Korea is obliged to compensate the Plaintiffs for damages incurred due to nonperformance of the obligation to pay reasonable compensation.

4) Liability as a claimant for performance

The defendant Republic of Korea agreed to waive the citizen's right to claim instead of receiving economic cooperation funds including the damage claim of the victims of forced mobilization from Japan under the Agreement on the Claims of Claims, and thus, the defendant Republic of Korea is obligated to perform the obligation as a claimant for damage liability, etc. borne by Japan and Japan companies.

B. Claim against Defendant Spanco

1) Although economic cooperation funds received from Japan as a result of the conclusion of the Agreement on Claim for Return of Unjust Enrichment included the claim for damages and other receivable claims that should accrue to the Plaintiffs, Defendant Spanco used as the construction funds of the steel station without the Plaintiffs’ consent, thereby gaining profits without any legal grounds, and thereby incurring losses to the Plaintiffs, who are the right holders. Accordingly, Defendant Spanco is obligated to return the amount equivalent to the Plaintiffs’ claim as unjust enrichment.

2) Responsibility of Defendant Republic of Korea as a co-existent transferee for Defendant Republic of Korea’s obligations

Defendant Spanco succeeded to the legal status of the Defendant Republic of Korea as it was a State-owned enterprise that received the full amount of the establishment funds from the Defendant Republic of Korea and succeeded to the legal status of the Defendant Republic of Korea. As such, the Defendant Republic of Korea concurrently assumed the obligations.

3. Determination

A. Determination as to the Defendants’ assertion of liability as to the Defendants’ claim for State compensation, liability for nonperformance of the obligation to pay reasonable compensation.

All of the grounds for this part of the claim are premised on the agreement that the defendant Republic of Korea agreed to waive the individual claims against Japan and Japanese companies like the plaintiffs through the agreement on claims.

Therefore, I will look at whether the contract on the plaintiffs' claims is terminated by giving up the plaintiffs' individual claims against Japan and Japan.

The Agreement on Claims is not a negotiation to claim the Japanese colonial rule, but rather a political agreement to resolve the civil financial claims and obligations between the two countries based on Article 4 of the Hague Francco Treaty, and the Economic Cooperation Fund paid by the Japanese Government to the defendant Republic of Korea pursuant to Article 1 of the Agreement on Claims does not seem to have a legal relationship with the resolution of the issue of rights under Article 2 and the legal quid pro quo. In the course of negotiations of the Agreement on Claims, the Japanese government admitted the illegality of the colonial rule and denied the legal compensation for forced mobilization damage from the source without recognizing the illegality of the colonial rule. Accordingly, the two countries did not reach an agreement on the nature of the rule of the Korean Peninsula. In light of these circumstances, it is difficult to view that the agreement on claims for damages caused by anti-human illegal acts or illegal acts directly connected with the colonial rule was included in the Agreement on Claims, as well as that it was difficult to deem that the agreement on claims for damages of the plaintiffs was not extinguished by the agreement on claims.

It is reasonable to see that it is.

Furthermore, deeming that the State not only waives the right to diplomatic protection by concluding a treaty but also can directly extinguish the right to individual claims of the State without the consent of the individual who has a separate legal personality from the State is inconsistent with the principle of modern law. Even if the State’s extinguishment of the right to individual claims through a treaty can be permitted under international law, considering that the State and the citizen are separate legal entities, the conclusion of a treaty cannot be deemed to have extinguished by the conclusion of a treaty, unless there is a clear basis for the treaty, inasmuch as the State and the citizen are separate legal entities, the State’s right to individual claims in addition to the right to individual claims can not be deemed to have been extinguished by the conclusion of the treaty. However, there is no sufficient ground to deem that the agreement on the right to individual claims was in agreement between the two countries on the extinguishment of the right

Therefore, the defendant Republic of Korea cannot be said to have renounced the damage claim, etc. that the citizens have directly against Japan and Japan under the Agreement on Claims.

If so, each of the above arguments based on this premise is without merit to examine the remaining points of the plaintiffs' claims.

2) Determination on the claim for the return of each unjust enrichment against the Defendants

It is examined whether the defendants' act of using economic cooperation funds lacks legal grounds.

In light of the following circumstances revealed in the facts acknowledged in the above Paragraph 1, since the conclusion of the Agreement on Claims, Defendant Republic of Korea's free portion of the Economic Cooperation Fund received from Japan is not only equivalent to the individual claims of the citizens, but also includes various items of money, claims, etc. against the Republic of Korea at the time of Japanese occupation as well as various other items of money, claims, etc. on the Republic of Korea's Typ (Seoul), the total amount of the economic cooperation fund is determined first by each item, and it is not possible to separate each item from each item because it is not determined by the method of adding up the amounts of money of each item. In order to determine individual claims of the Republic of Korea's citizens, it is difficult to determine a certain amount of money in the Agreement on Claims for Economic Cooperation since it is necessary to determine the amount of money for a long time. In light of the circumstances such as the Agreement on Claims for War or the Agreement on Claims for Compensation for a Large-Scale Syp and the Agreement on the Compensation for Damages between the State and the State.

Therefore, upon the conclusion of the agreement on the right of claim, part of the economic cooperation funds paid by the Japanese Government to the defendant Republic of Korea is naturally attributed to the defendant Republic of Korea, and the citizens can not immediately seek payment from the defendant Republic of Korea without any legal basis on the premise that a specific part of the above economic cooperation funds naturally reverts to themselves, and the use of the above funds by the defendant Republic of Korea cannot be deemed as lacking legal grounds. The use of the funds by the defendant Republic of Korea is also in accordance with legitimate procedures provided for in the former Act on the Operation and Management of Claim Funds and the Enforcement Decree of the same Act (in particular, in light of the purpose and details of the establishment and operation of the defendant Spanco, it is determined that the establishment and operation of the defendant with the economic cooperation fund complies with the "standards for the use of the funds" provided for in Article 4 (1) and (2) of the above Act. Since the funds contributed to the defendant Spanco are replaced with the government contribution of the defendant Republic of Korea after that they are directly repaid by the defendant, it cannot be said that there is no legal grounds.

With respect to disputes involving Koreans of the Republic of Korea and Japan, it is clear that Japan, a liable for compensation, is the purpose of paying damages to the nationals of the Republic of Korea, and if it was merely the fact that Japan entrusted the storage and payment of the gratuitous portion of the funds for economic cooperation in the Republic of Korea, or the defendant merely entrusted the storage and payment of the funds for economic cooperation to the Republic of Korea for the convenience of the procedure for paying damages, there is room to deem that the act of using the funds of the Republic of Korea does not have any legal ground. However, as seen earlier, unless the nature of the agreement on claims or the

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are dismissed in its entirety as it is without merit, and it is so decided as per Disposition.

Judges

The number of judges assigned to the presiding judge;

Judges Bo Sung-ho

Judges Thai-young

Note tin

1) Article 4 (Consolation Money) The State shall pay consolation money to the victims of forced mobilization or their bereaved family members according to the following classification:

1. Where a person dies or is missing due to compulsory mobilization abroad, 20 million won per victim of the compulsory mobilization (where he/she has received money pursuant to Article 4 (2) of the Act on Compensation for Civil Claims in Japan (referring to the Act enacted by Act No. 2685 and repealed by Act No. 3615), 2.3 million won per victim of the compulsory mobilization shall be deducted);

2. Where a person suffers from disability due to forced mobilization abroad, the amount prescribed by Presidential Decree based on the degree of disability not exceeding 20 million won per victim of compulsory mobilization.

2) Article 5(1) of the State shall pay the outstanding amount payable to the injured party or his/her bereaved family members by converting the outstanding amount to 2,000 won in the currency of the Republic of Korea of the defendant 1N at the time of the payment of the outstanding amount to Japan or Japan.

(2) In the case of paragraph (1), if the amount of the outstanding amount is not more than 100N Japanese currency, the amount of the outstanding amount shall be deemed to be 100N Japanese currency.

3) The term "bereaved family member" in Article 3 (Scope, etc. of Bereaved Family Members) (1) The term "bereaved family member" in this Act means any of the following persons, who is a forced victim of compulsory mobilization or a victim of outstanding amount and a relative, and determined as a bereaved family member pursuant

1. Spouse and children;

3. A grandchild;

4. A sibling.

(2) The order of priority of bereaved family members to receive consolation benefits under Article 4 and subsidies for outstanding amount under Article 5 shall be the order of priority under each subparagraph of paragraph (1).

(3) Survivors according to the order under the subparagraphs of paragraph (1) shall have the right to receive consolation benefits under Article 4 and subsidies for amount receivable under Article 5: Provided, That if there are at least two persons in the same order of priority, the entitlement to receive consolation benefits and subsidies for amount receivable shall be shared in the same share.

4) In the event that all of the claims asserted by the plaintiffs are for the same benefit, and one of the claims is recognized, it seems that the determination of the remaining claims is unnecessary.