(영문) 청주지방법원 2019.10.17. 선고 2019가단29 판결

The defendant shall pay to the plaintiff 50 million won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. The deceased B was forced to be mobilized as a worker in the area of the Republic of Korea in accordance with the Japanese colonial rule around 1941. Around August 7, 1966, the deceased was killed in the deceased's death, and the wife C (the deceased on May 12, 1984, 1984), children, D, and E were alive at the time.

B. On September 8, 2015, Japan concluded the Grand Franco Treaty to resolve the issue of compensation before and after the time, and the local governing authorities, including the Republic of Korea, and the disposition of claims, etc. against Japan and Japan and Japan people, as provided for in Article 2 of the above Treaty, determined that the special agreement between Japan and the governing authorities of the said region will be applied (Article 4 (a) of the Treaty).

C. Since June 22, 1965, the defendant entered into the "Agreement on Basic Relations between Japan and the Republic of Korea for the purpose of national correction and its affiliated agreements on the resolution of problems concerning property and claims and the economic cooperation between Japan and Japan" (referring to the agreement entered into force on December 18, 1965 as the Treaty, which entered into force on December 17, 199; hereinafter the "Agreement on Claim").

D. Article 1 of the Agreement on Claim provides the Defendant with a free payment of USD 300 million between the ten-year period of time and the loan of USD 200 million. In addition, Article 2 of the Agreement on Claim provides that the country shall make a loan of USD 200 million.

Article 2.1. The Contracting States confirm that the problems concerning the property, rights and interests of both Contracting States and their nationals (including corporations), and the claims between both Contracting States and their nationals, including those stipulated in Article 4 (a) of the Peace Treaty with Japan signed on September 8, 1951, should be resolved completely and finally.2. The provisions of this Article do not affect (a) the property, rights and interests of a person who is a national of a Contracting State and of a person who is residing in the other Contracting State from August 15, 1947 to the date of signing this Agreement, and whose property, rights and interests have been derived from August 15, 1945 to the date of signing this Agreement:

Subject to the provisions of March 2, 200, those acquired in the course of contact and entered under the jurisdiction of the other Contracting State, and subject to the provisions of March 2, 299, those property, rights and profits of a Contracting State and its nationals, which are under the jurisdiction of the other Contracting State on the date of signature of this Agreement, and all claims against a Contracting State and its nationals and arising from any cause arising before the same person, cannot be asserted.

6) As to Article 2 above, the Agreed Minutes of the Agreement on Claim(I) shall be defined as follows:

(a) The term "property, rights and interests" has been understood to refer to all kinds of practical rights that are recognized as property value based on legal basis. (e) The measures to be taken pursuant to paragraph 3 of the same Article and paragraph 1 of the same Article have agreed to the end of domestic measures in each country to be taken in order to resolve issues regarding the property, rights and interests of the two countries and their people as referred to in paragraph 1 of the same Article. (g) The issues concerning the property, rights and interests of the two countries and their people that have been completely and finally resolved as referred to in paragraph 1 of the same Article and the claims between the two countries and their people are included in all claims belonging to the scope of the Republic of Korea's Grand Claim (3) of the Republic of Korea's Grand Claim (3) of the Republic of Korea) which are submitted from the Korean side at a single meeting, therefore, it is confirmed that no assertion may be made with respect to the Japanese Grand Claim.

D. After the conclusion of the Agreement on Claims, the Defendant enacted the former Act on the Management and Management of Funds for Claims (amended by Act No. 1741 of Feb. 19, 1966 and repealed by Act No. 3613 of Dec. 31, 1982), the former Act on the Report of Civil Claims to the Private Sector (amended by Act No. 2287 of Jan. 19, 197 and repealed by Act No. 3614 of Dec. 31, 1982) and the former Act on the Compensation for Civil Claims to the Private Sector (amended by Act No. 2685 of Dec. 21, 1974 and enacted by Act No. 3615 of Dec. 31, 1982) and enacted the former Act on the Support for Overseas Mobilization of War to the Private Sector (amended by Act No. 8613, Dec. 36, 2012).

E. On March 22, 2010, the Defendant: (a) established a special act on the support for forced mobilization of force during the period of an overseas defense and the victims, etc. of forced mobilization during the period of an overseas defense; and (b) organized the Support Committee for the Victims, etc. of forced mobilization of force during the period of an overseas defense (hereinafter referred to as the “Committee”) in order to relieve the suffering therefrom and contribute to national unity by identifying the truth of damage caused by compulsory mobilization during the period of an overseas defense; and (c) providing compensation at a humanitarian level to the victims, their bereaved families, etc.; and (d) set up a committee to support the victims, etc. of forced mobilization during the period of an overseas defense. On June 2, 2011, the instant committee determined the Deceased as a victim of forced mobilization of force overseas; and (d) paid KRW 2,333,333 of the consolation benefits from the injury to the Plaintiff, who is

【Ground of recognition】 The fact that there has been no dispute, Gap 1 through 4, 7 evidence (if there is a paper number, including it; hereinafter the same shall apply), Eul 1 through 4, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The conclusion of the Korea-Japan Agreement prevents the State from exercising its right to claim damages constitutes a tort, and the Defendant is liable to compensate for the damages.

B. At the time of entering into the Korea-Japan Claim Agreement, the State constitutes unjust enrichment and thus, is obligated to pay the Plaintiff, a bereaved family member of the victim.

C. The defendant shall pay KRW 100 million per capita to the bereaved family members of the forced disciplinary agency, but since the plaintiff paid the deceased's medical expenses for the medical expenses of the deceased, the defendant shall first pay to the plaintiff the medical expenses of KRW 50 million.

3. Determination

A. Determination as to the assertion of tort in concluding a claim agreement

1) Legal principles

A) In order to meet the requirement of illegality stipulated in Article 2(1) of the State Compensation Act, an act of discretion ought to be deemed to have lost objective legitimacy when a public official’s breach of duty is deemed to have lost objective legitimacy when the public official’s breach of duty is based on the standard of a public official (see, e.g., Supreme Court Decision 2005Da48994, Apr. 10, 2008). In particular, in a case of a discretionary act, it should be recognized that the act of duty was considerably unreasonable under the generally accepted social norms and abused discretion (see, e.g., Supreme Court Decision 2008Da24050, Jun. 25,

B) During the Japanese occupation period, the reasons for the final and conclusive judgment of Japanese citizens against G Co., Ltd. newly established after the former F was dissolved (hereinafter “G”) against the former F Co., Ltd. (hereinafter “former F”), which had been drafted for forced labor under the National Service Draft Ordinance during the Japanese occupation period, include the part that judged that the application of the Japanese National Mobilization Act and the Korean National Service Ordinance is valid on the premise of the normative recognition that the Japanese colonial rule is legitimate, and that the Japanese colonial rule is not only an illegal occupation from a normative point of view, and that it cannot be compatible with the Constitution of the Republic of Korea from among legal relations arising from the Japanese illegal domination is invalid. Thus, the reasons for the final judgment of Japan is that the Japanese colonial rule itself is against the good customs and good customs of the Republic of Korea, and thus, it cannot be seen that there is a conflict between the Japanese colonial rule and Japanese colonial rule and Japanese colonial rule, and thus, it is clear that there is no reason to recognize the Japanese Constitutional Order 205 per se as a core judgment of the Republic of Korea.

C) A treaty shall be interpreted faithfully in accordance with its normal meaning, in light of the context of a treaty, including its specialized annexes, and the subject and purpose of a treaty, in accordance with its language and text. The context here should include agreements, etc. made between the Parties regarding the conclusion of a treaty in addition to the text of a treaty (including its expertise and annexes), and should include where the meaning of the text and text of a treaty is ambiguous or ambiguous, etc., supplementary consideration should be given to the circumstances at the time of negotiation and conclusion of a treaty.

In light of the fact that the agreement on the right to claim compensation for consolation money is not a negotiation to claim compensation for illegal colonial domination in Japan but a political agreement between the two countries based on Article 4 of the Convention on the Right to Claim Compensation for Damages and the fact that the economic cooperation funds that the Japanese government paid to the Japanese government in accordance with Article 1 of the Agreement on the Right to Claim Compensation for Damages are not clear that the economic cooperation funds that the Japanese government paid to the Japanese government in accordance with Article 2 and the Japanese government in accordance with Article 1 of the Agreement on the Right to Claim Compensation for Damages are in a legally quid pro quo relationship with the settlement of the issue of rights under Article 2, and that it is difficult to recognize the illegality of Japanese citizens in the course of negotiations, and that the agreement on the right to claim compensation for consolation money is not included in the agreement on the right to claim compensation for damages under Article 10 of the Agreement on the Right to Claim Compensation for Damages. It is not included in the agreement on the right to claim compensation for consolation money under Article 281 of the Agreement on the Right to Claim.

2) Determination

In the instant case, as seen earlier, there is no sufficient basis to deem that the agreement on the right to claim was concluded between the two countries on the termination of the individual’s right. Since Japan, immediately after the agreement on the right to claim, the establishment and enforcement of the Act on the Measures for Property Rights to extinguish the rights to Japan and its citizens within Japan can only be understood when the agreement on the right to claim is premised on the fact that the individual’s right to claim does not expire, it is unclear whether the economic cooperation funds paid by the Japanese government to the Japanese government under the agreement on the right to claim can be viewed as having legal relations with the settlement of the problem of right and the legal payment. Ultimately, the right to claim compensation for forced mobilization does not seem to have been included in the agreement on the right to claim, as long as the conclusion of the agreement on the right to claim between Japan and Japan cannot be deemed to have terminated the individual’s right to claim against the Japanese company, it is difficult to view that the Defendant’s act of entering into the agreement on the right to claim was unlawful as an act that has lost objective justification when it is a public

Therefore, the Plaintiff’s assertion that is premised on the counterclaim is without merit to examine the remainder of the issue.

B. Determination on the assertion of unjust enrichment for claims

There is no dispute between the parties that the Defendant used the funds received from Japan under the Agreement on Claims for Economic Development.

However, Article 4 of the former Act on the Management and Management of Claim Funds separates claims funds into free of charge, loan funds, and won currency funds, and Article 4 of the said Act provides that "Free Fund (referring to USD 300 million funds introduced pursuant to Article 1.1 (a) of the Agreement on the Management and Management of Claim Funds) shall be used for the promotion of agriculture, forestry, and fisheries, the introduction of raw materials, and services, and other similar projects to contribute to economic development, and shall refer to USD 200 million funds introduced pursuant to Article 1.1 (b) of the loan agreement, and shall be used for the projects to expand small and medium enterprises, mining, key industry, and social overhead capital, and Korean won funds (referring to funds generated from the use of free funds and loan funds) shall be used as prescribed by the Management Committee of Claim Fund." Thus, the defendant's use of claim funds for economic development, etc. shall not be deemed to have obtained profits by itself without any legal reasons, as long as its form is based on the former Act on the Operation and Management of Claim Funds

Therefore, the plaintiff's above assertion is without merit to further examine the remainder of the issue.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.