The case holding that, in case where the real estate which should be owned by the State pursuant to the main sentence of Article 3 (1) of the Special Act on the Reversion of Property of Pro-Japanese Collaborators to the State has been sold to a third party who is aware of such circumstances, the descendants of pro-Japanese and anti-National Collaborators shall return the amount equivalent to the purchase price

The case holding that since the descendants of pro-Japanese and anti-national actors cannot return the above real estate to a third party in good faith under the latter part of Article 3 (1) of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State, the amount equivalent to the purchase price of pro-Japanese property shall be returned as unjust enrichment on the ground that the descendants of pro-Japanese and anti-national actors cannot return the real estate to the State.

Article 3(1) of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State; Article 741 of the Civil Act

Republic of Korea (Law Firm Governing Law Firm, Attorneys literature-Bed et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Han-soo et al., Counsel for defendant-appellant)

May 20, 2009

1. The defendant shall pay to the plaintiff 446,50,000 won and 200,000,000 won among them, 5% per annum from September 9, 2006 to January 28, 2009; 246,50,000 won per annum from December 28, 2006 to March 10, 209; and 20% per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Current status of ownership change of the land of this case

(1) On Apr. 7, 1930, the Defendant’s transport-in-fluorite (from December 12, 1858 to August 6, 1940) purchased forest land No. 20-2 on April 15, 1930 and completed the registration of ownership transfer on April 15, 1930, after purchasing the forest land No. 20-3 forest land of the same Ri on April 22, 1930 and completing the registration of ownership transfer on April 25, 1930.

(2) On August 6, 1940, Nonparty 1 inherited the deceased’s property solely, and Nonparty 1 died on February 21, 1951, Nonparty 2 inherited Nonparty 1’s property solely, and Nonparty 2 died on November 16, 1971, the Defendant and Nonparty 3 jointly inherited the deceased’s property.

(3) On March 2, 1978, the woodland 20-2 forest was divided into mountain 20-13 and mountain 20-14, mountain 20-8 through 20-12 and mountain 20-3 forest was converted to registration before mountain 69-10, and mountain 20-9 land was converted to registration before mountain 699-8.

(4) According to the farmland expansion development project under Article 127 of the former Agricultural Community Modernization Promotion Act, around June 28, 1978, the period prior to 699-10 was 69,000 square meters, including 699-24 square meters (hereinafter “1 land”), six pieces, including 699-15 square meters and 684 square meters (hereinafter “6,000 square meters”), the previous period was 699-8 square meters and the previous period was 699-16,000 square meters (hereinafter “2 land”).

(5) On August 4, 1981, the Defendant completed the registration of ownership transfer for land Nos. 1 and 2 by reason of sale as of May 10, 1971 under the Act on Special Measures for the Transfer, etc. of Real Estate Ownership.

(6) On September 5, 2006, the Defendant sold the land No. 2 to Nonparty 4 for KRW 200 million and completed the registration of ownership transfer on the 8th of the same month. On November 30, 2006, the Defendant sold the land No. 1 to Nonparty 5 for KRW 2465 million and completed the registration of ownership transfer on December 27, 2006.

B. On October 7, 1910, the deceased’s private soldier was awarded a commission by the Japanese government, and received KRW 100,000 from the Japanese government bonds on January 13, 191. On August 1, 1912, the deceased’s private soldier received the Korean Joint Memorial Hall on August 1, 1912, and was appointed as the Vice-Speaker on July 6, 1925, the Joseon General Senior Advisor and the Vice-Speaker on October 13, 1939.

C. On November 22, 2008, the Investigation Committee on Property of Pro-Japanese Collaborative Persons constitutes pro-Japanese Collaborative Persons under Article 2 subparagraph 1 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Persons (hereinafter “Special Act”), and Article 1 and Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Persons (hereinafter “Special Act”), although the land falls under pro-Japanese Property under pro-Japanese Property under Article 2 subparagraph 2 of the Special Act, Nonparty 5 and Nonparty 4, who acquired it, cannot make a decision on the reversion of each of the above land as it constitutes a third party acting in good faith under the latter part of Article 3 (1) of the Special Act, and therefore, it was confirmed that the land 1 and 2 are pro-Japanese Property in order to

D. The defendant alleged that since the deceased Byung-man acquired land Nos. 1 and 2 regardless of pro-Japanese act, the disposition of pro-Japanese property verification on each of the above lands was unlawful, and sought revocation of the decision to pro-Japanese property verification to the Seoul Administrative Court. However, the Seoul Administrative Court rendered a ruling of dismissal on the ground that the first and second lands purchase funds cannot be determined as unrelated to the series of acts of pro-Japanese people that they had committed, in light of the fact that no evidence exists to reverse the presumption that the land was acquired as pro-Japanese in return for pro-Japanese act, and that the deceased Byung-man acquired various rights and privileges while he was granted various benefits in return for pro-Japanese act, and that he acquired the land Nos. 1 and 2 while he was receiving various benefits in return for pro-Japanese act, the first and second lands purchase funds cannot be determined as being irrelevant to the series of acts of pro-Japanese people that

[Reasons for Recognition] Facts without dispute, Gap evidence 2 through 7, Gap evidence 9, 10, Eul evidence 1 through 3 (which include each number; hereinafter the same shall apply) and the whole purport of pleading

2. Judgment on the plaintiff's claim

A. According to the above facts, it is presumed that the deceased-class and anti-national actors of the Republic of Korea purchased the land Nos. 1 and 2 on April 7, 1930 between the opening of the war and August 15, 1945, and completed the registration of ownership transfer on April 15, 1930 and the 25th of the same month pursuant to the latter part of Article 2 subparagraph 2 of the Special Act, it is presumed that the land No. 1 and 2 were acquired in return for pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese's pro-Japanese.

B. Defendant’s assertion and judgment

(1) The defendant's assertion

The presumption that the deceased's 1 and 2 land was acquired in return for pro-Japanese act is a property acquired in return for pro-Japanese act, since the deceased's 1 and 2 land was purchased in the form of money prepared by selling the inherited land from the non-party 6 and the graves of the non-party 7 were transferred to the deceased and provided to the deceased for the purpose of protecting the graves.

Even if the plaintiff's claim for return of unjust enrichment is recognized as pro-Japanese property, KRW 21,857,00 and KRW 2,185,700 should be deducted from the amount of unjust enrichment that the defendant should return.

(2) Determination

(A) First, as to the Defendant’s assertion that the land Nos. 1 and 2 was not acquired in return for pro-Japanese act, it is insufficient to acknowledge the above assertion only by the descriptions of Nos. 6 and 7, and there is no other evidence to acknowledge it. Rather, as recognized earlier, the deceased Nos. 1 and 2 acquired various rights and privileges in return for pro-Japanese act, such as being appointed to the Vice-Speaker of the Joseon General on July 6, 1925, and the acquisition of land Nos. 1 and 2 in return for pro-Japanese act, since the deceased No. 1 and 2 acquired land purchase funds cannot be readily concluded to have been entirely unrelated to a series of anti-national act, as it is recognized earlier.

(B) Next, as to the defendant's assertion of deduction, the defendant's unjust enrichment should be returned in itself to the third party acting in good faith. However, since each of the above land cannot be returned to the third party acting in good faith, the amount of realization of each of the above land itself shall be deemed unjust enrichment, and as such, the price equivalent to the transfer income tax and resident tax shall not be deducted as alleged by the defendant. Thus, this part of the defendant's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Cho Jae-chul (Presiding Judge)