[1] In a case where an unentitled person disposes of another person's right to a third party but the original right-holder loses his/her right in accordance with the protection provision of a third party acting in good faith, whether the right-holder may claim the return of the price that the third party received from the unentitled person (affirmative), and whether the beneficiary who received the sales price by disposing of real estate owned by another person does not return the transfer income tax or other

[2] In a case where the land acquired by Gap was reverted to the State at the time of the act of causing the cause under the main sentence of Article 3(1) of the Special Act on the Reversion of Property of Pro-Japanese Collaborators to the State, but Eul acquired it, and Byung could not be returned as it constitutes a bona fide third party under the latter part of Article 3(1) of the same Act, the case affirming the judgment below which held that Gap is obligated to return the illegally acquired purchase price,

[1] Where an unentitled person disposes of another person's rights to a third person but the original right holder loses his/her rights in accordance with the provisions on the protection of a third person acting in good faith, the right holder may claim a return against the unentitled person by deeming the non-entitled person as unjust enrichment so-called unjust enrichment. Meanwhile, in calculating the value to be returned in cases where the beneficiary is unable to return the original property because he/she disposes of the property benefiting without any legal cause, the expenses incurred in obtaining benefits without legal cause shall be deducted within the scope of the benefits that the beneficiary should have to return. However, in cases where the beneficiary receives the proceeds from the disposal of real estate owned by another person, the beneficiary is a person in a position to have returned the real estate itself without such disposal, and thus, the transfer income tax and other expenses incurred by his/her disposal cannot be deemed as expenses incurred by the beneficiary

[2] In a case where the land acquired by Gap was reverted to the State at the time of the act of causing the acquisition, etc. under the proviso of Article 3(1) of the Special Act on the Reversion of Property of Pro-Japanese Collaborators to the State, but Eul acquired it, Byung acquired it, and Byung was not able to obtain a refund of the land itself as a bona fide third person under the latter part of Article 3(1) of the same Act, the case affirming the judgment below which held that Gap is obligated to return the purchase price, which

[1] Article 741 of the Civil Code / [2] Article 741 of the Civil Code, Article 3 (1) of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to State

[1] Supreme Court Decision 94Da25551 delivered on May 12, 1995 (Gong1995Sang, 2104)

Republic of Korea (Government Law Firm Corporation, Attorneys Literature-Bed et al., Counsel for the plaintiff-appellant)

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

Seoul High Court Decision 2009Na103174 decided April 22, 2010

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

The grounds of appeal are examined.

1. As to the assertion of violation of the Constitution

A. Article 2 subparag. 1(a) main sentence of Article 2 subparag. 1(a) of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborative Acts (hereinafter “the Special Act”) (hereinafter “instant definition provision”) defines a person who committed an act under Article 2 subparag. 6 through 9 of the Special Act on the Finding the Truth of Anti-National Acts under the Japanese colonial Rule as one of anti-National Collaborative Acts, and Article 2 subparag. 2 of the Special Act (hereinafter “instant presumption provision”) defines a person as one of anti-National Collaborative Acts, and Article 2 subparag. 2 of the Special Act (hereinafter “instant presumption provision”) stipulates that the property acquired by a pro-Japanese and Anti-National Collaborative Acts person from the opening of the Japanese War to August 15, 1945 shall be presumed as the property acquired in return for pro-Japanese act, and Article 3(1) main sentence of the Special Act (hereinafter “instant attribution clause”) provides that such pro-Japanese property shall be owned by the State at the time of its acquisition, donation, etc. For the following reasons:

(1) First, the definition clause of this case can be sufficiently grasped in light of the structure and terms of the provision, and even if there is some difficulty, it can be sufficiently resolved in accordance with the systematic and harmonious understanding with other provisions or the interpretation in accordance with the legislative purpose and intent of the law in question. Thus, the meaning of the definition clause of this case cannot be deemed to be contrary to the standards of clarity, and at least is likely to be generally predicted as a person with sound common sense and ordinary legal sentiment. Therefore, the definition clause of this case does not violate the principle of clarity.

(2) Next, as to the presumption clause in this case, the past liquidation work, including the reversion of a pro-Japanese property, takes place after a long period of time since the piracy, and it is extremely difficult for the State to prove the existence of property acquired in return for pro-Japanese cooperation due to the occurrence of many materials to prove the ownership of real estate due to the outbreak of Korean War, etc., on the other hand, it is extremely difficult for the State to prove the existence of property in return for pro-Japanese cooperation. On the other hand, the purchaser of property or its descendants are keeping the materials related to the acquisition of property or are highly likely to know the details of acquisition of the property most well-known. Thus, it cannot be deemed that it is considerably unfair for the purchaser of the property to prove the acquisition of the property. In addition, the actual necessity of the presumption clause in this case to prove the existence of the burden of proof that is transferred to pro-Japanese and anti-national actors is excessive in light of various circumstances. Thus, the presumption clause in this case cannot be deemed to have violated the legislative principles by abusing their discretion or infringing due process.

(3) Finally, as to the reversion clause of this case, although the ownership clause of this case constitutes a genuine class legislation, it may be exceptionally permitted to a case where the citizen could have anticipated the retroactive legislation, or the reason for extremely serious public interest that takes precedence over the request for protection of trust is justified, etc. However, the retroactive deprivation of a pro-Japanese property is an exceptional case where the retroactive legislation could have been expected, and the legal trust infringed by a genuine class legislation cannot be deemed to be serious, and the importance of public interest that is achieved through such legislation can be deemed to be a tension. Therefore, it cannot be deemed to be a violation of Article 13(2) of the Constitution solely on the ground that the attribution clause of this case is a genuine class legislation.

In addition, the attribution clause of this case is intended to realize the constitutional ideology of the March 1st campaign, which is resistanceed to the Japanese colonialism, and its legislative purpose is justifiable, and the interpretation and application of the provisions of the existing property law, such as the Civil Act, alone, is difficult to deal with the pro-Japanese property. In addition, the scope of the case is limited to the subject of attribution as pro-Japanese property of the person who committed the de-Japanese act with a significant and obvious scope of the case, and the person who was decided by the Investigation Committee on Pro-Japanese Collaborative Property by the pro-Japanese who actively participated in the independence movement after the anti-Japanese act, etc. is excluded from the exception, and the exception is excluded from attribution by proving that the property is not acquired in return for pro-Japanese act, and the protection provision for a bona-Japanese third party is established, and thus, it does not violate the minimum principle of damage and satisfies the balance of legal interests.

Furthermore, since guaranteeing the possession of pro-Japanese property in itself is contrary to the definition, this case’s reversion provision cannot be deemed to contravene the principle of equality, and since the property acquired through the descendants’ economic activities by pro-Japanese and anti-Japanese actors or inherited property, etc. other than pro-Japanese property, is not attributed to the State, it cannot be deemed as contrary to the principle of prohibition of the

B. Therefore, the judgment below did not err in the violation of the Constitution, as alleged in the grounds of appeal.

2. As to the assertion of misapprehension of legal principles as to presumption provisions of special law

According to the reasoning of the judgment below, the court below determined that since the deceased non-party 1, who is pro-Japanese and anti-national actors, purchased the land Nos. 1 and 2 from the opening of the war of Russa and Japan to August 15, 1945, respectively, on April 7, 1930 and completed the registration of ownership transfer on April 15, 1930 and on August 25, 1930, it was presumed that the land Nos. 1 and 2 were presumed to have been acquired in return for pro-Japanese act and that there was no evidence to support the reversal of such presumption.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no violation of the rules of evidence and misapprehension of legal principles as to the presumption clause of special law as alleged in the grounds of appeal

3. As to the assertion of misapprehension of the legal principle

In a case where an unentitled person disposes of another person’s rights to a third party but the original right holder loses his/her rights in good faith, the right holder may claim a return on the ground of the so-called infringement unjust enrichment that he/she received from a third party in return for the disposition.

Meanwhile, in cases where a beneficiary is unable to return the original property because he/she disposes of the property which he/she acquired without any legal cause, the expenses that the beneficiary has disbursed to obtain without any legal cause shall be deducted within the scope of the benefits that the beneficiary should return (see Supreme Court Decision 94Da25551, May 12, 1995). However, in cases where the beneficiary disposes of the real estate owned by another and receives the proceeds from the sale, the beneficiary is a person in the position to have returned the real estate in the absence of such disposal, and thus, the transfer income tax and other expenses incurred by his/her disposal cannot be deemed as the expenses incurred by the beneficiary in relation to the acquisition of the profits, and thus, it shall not be deducted from the benefits

According to the reasoning of the judgment below, the court below determined that the land Nos. 1 and 2 are presumed to have been acquired as a price for friendship pursuant to the latter part of Article 2 subparag. 2 of the Special Act, and it is owned by the State at the time of the act of causing acquisition, etc. pursuant to the main sentence of Article 3(1) of the Special Act. However, the non-party 2 and the non-party 3 who acquired each land from the defendant constitutes a bona fide third person under the latter part of Article 3(1) of the Special Act and thus cannot be returned, and thus, the amount equivalent to the transfer income tax and resident tax, which was realized by unjust enrichment, shall not be deducted as alleged by the defendant. In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no

4. 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 Shin Young-chul (Presiding Justice)