[1] Whether the “property of pro-Japanese” under Article 2 subparag. 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State includes the property that was disposed of to a third party before the enforcement of the said Act (affirmative), and whether such interpretation is in violation of the Constitution (negative)

[2] Meaning of “a final and conclusive judgment” under the proviso of Article 2 of the Addenda of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State (amended by May 19, 201) and in a case where a final and conclusive judgment revoking a decision to revert property to the State for specific property of pro-Japanese and Anti-National Collaborators to the State becomes final and conclusive, whether the proviso of the aforementioned proviso applies to the decision to revert the property

[3] The method of determining whether a citizen’s expectation or trust with respect to the order of the former Act is protected when the amendment is made

[1] In light of the language, structure, and purport of Article 2 subparag. 2 and Article 3(1) of the Special Act on the Asset Ownership of Pro-Japanese and Anti-National Collaborative Acts (hereinafter “The Act”), Article 2 subparag. 2 of the Act on the Asset Ownership does not differently stipulate the requirements of pro-Japanese property depending on whether the pro-Japanese property was disposed of before the enforcement of the Act. The scope of “third party” under the proviso of Article 3(1) of the same Act is interpreted to include not only the person who acquired the pro-Japanese property before the enforcement date of the Act on the Asset Ownership but also the person who acquired the property after the enforcement date of the same Act. Thus, it is difficult to interpret “pro-Japanese property” under Article 2 subparag. 2 of the Act on the Asset Ownership of Pro-Japanese and Anti-National Collaborative Acts as well as the property disposed of to the third party before the enforcement date of the Act on the Asset Ownership of Pro-Japanese and it is difficult to view that the third party’s property is in violation of the Act prior to the enforcement date of the Act.

[2] In full view of Article 2 subparag. 1(a) of the former Special Act on the Reversion of Property of Pro-Japanese and the State (amended by Act No. 10646, May 19, 201; hereinafter “former Act on the Reversion of Property”), Article 2 subparag. 1(a) and (b) of the Special Act on the Reversion of Property of Pro-Japanese and the State (hereinafter “former Act on the Reversion of Property”), Article 2 subparag. 1(a) and (b) of the former Act on the Reversion of Property of Pro-Japanese and the Addenda (amended by Act No. 10646, May 19, 201); Article 2 subparag. 1(b) of the former Act on the Finding of Anti-National Acts under the Japanese Rule No. 11494; Article 2 subparag. 7 of the former Special Act on the Reversion of Property of Pro-Japanese and the Act on the Reversion of Property of the State provides that the same shall not apply to cases where the adjudication on property of pro-Japanese and the State becomes final.

[3] In the amendment of a law, the trust of the parties to the order of the former law is reasonable and reasonable, and the public interest purpose to achieve a new legislation is not justified due to the extreme damage of the parties caused by the amendment of a law, the new legislation shall not be allowed in light of the principle of trust protection, etc. Provided, That if the necessity of the amendment of a social environment or economic condition makes it impossible to justify the destruction of the parties' trust, the new legislation shall not be allowed. However, since the need for a change in the social environment or economic condition changes, the new legal order and the existing legal order require conflicts of interest between the changed new legal order and the existing legal order, all expectations or trust of the citizens are not protected as constitutional rights, and the issue of protection shall be

[1] Article 2 subparag. 2 and Article 3(1) of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborative Acts / [2] Article 2 subparag. 1(a) of the former Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborative Acts to the State (Amended by Act No. 10646, May 19, 201); Article 2 subparag. 7 of the former Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborative Acts to the State (Amended by Act No. 10646, May 19, 201); Article 2 subparag. 1(a) and (b) of the former Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborative Acts to the State (Amended by Act No. 10646, Oct. 22, 2012) / [3] Articles 13 and 23 of the Constitution; Article 4(2) of the Administrative Procedures Act

[1] Supreme Court en banc Decision 2008Du13491 Decided November 3, 2008 (Gong2008Ha, 1685) / [3] Constitutional Court en banc Decision 2005Hun-Ma222 Decided October 30, 2008 (Hun-Gong145, 1466)

Plaintiff (Law Firm LLC, Attorneys Park Gi-sung et al., Counsel for the plaintiff-appellant)

The Minister of Justice (Law Firm, Kim & Lee LLC, Attorneys Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu503 decided January 8, 2014

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. Whether the meaning and scope of pro-Japanese property is misunderstanding legal principles

(1) Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborative Acts (hereinafter “Property Reversion Act”) provides that “The property of pro-Japanese shall belong to the State at the time of the act of causing cause, such as acquisition or donation.” Article 3(1) provides that “The property of pro-Japanese and Anti-National Acts shall not infringe upon the rights acquired or acquired by a third party in good faith at the time of the act of causing the acquisition, donation, etc., by being aware that it is an inherited property or pro-Japanese property.” In this case, the property acquired by a pro-Japanese and Anti-National Acts shall be presumed to be the property acquired in return for the act of pro-Japanese.”

(2) In light of the language, structure, purport, etc. of the relevant provision, Article 2 subparag. 2 of the Act on the Friendly Property Reversion does not vary depending on whether the concept of pro-Japanese property was disposed of before the enforcement of the Act. The scope of “third party” under the proviso of Article 3(1) of the same Act is interpreted to include not only the person who acquired the pro-Japanese property before the enforcement date of the Act but also the person who acquired the property after the enforcement date of the same Act (see Supreme Court Decision 2008Du13491, Nov. 3, 2008, etc.). Thus, “pro-Japanese property” under Article 2 subparag. 2 of the Act on the Friendly Property Reversion includes the property disposed of to the third party before the enforcement date of the Act. Even if such interpretation is interpreted, if a third party who acquired the property in good faith or the right was acquired by paying a fair payment before the enforcement date of the Act, it cannot be deemed that the property violates the proviso to Article 3(1) of the Act.

(3) The court below is just in holding that the land in this case was disposed of to a third party prior to the enforcement date of the Act on the Reversion of Pro-Japanese Property, and it does not constitute pro-Japanese property. In so doing, the court below did not err by misapprehending the meaning and scope of pro-Japanese property under the Act on the Reversion of Pro-Japanese Property,

B. Whether there is a misapprehension of the legal principle on the scope of application under Article 2 of the Addenda to the Act on Reversion of Pro

(1) Article 2 Subparag. 1(a) of the former Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State (amended by Act No. 10646, May 19, 201; hereinafter “former Act on the Reversion of Property”) provides that “any person who commits an act under subparagraphs 6 through 9 of Article 2 of the Special Act on the Finding the Truth of Anti-National Acts under the Japanese colonial Rule” with respect to “the person who committed an act under subparagraphs 6 through 9 of Article 2 of the former Act on the Finding the Truth of Anti-National Acts under the Japanese Rule of the Japanese Rule,” and Article 2 Subparag. 7 of the former Special Act on the Finding the Truth of Anti-National Acts under the Japanese Rule of the Japanese Rule (amended by Act No. 11494, Oct. 22, 2012; hereinafter “former Anti-National Rule”).

However, Article 2 subparag. 1 (a) of the Act on the Reversion of Pro-Japanese Property (amended by May 19, 201) provides that "a person who committed an act under Article 2 subparag. 6, 8, and 9 of the Special Act on the Finding the Truth of Anti-National Acts under the Japanese colonial Rule," and Article 2 subparag. 2 (2) of the Addenda of the Act on the Reversion of Pro-Japanese Property (hereinafter referred to as "the Addenda of this case") provides that "a person who committed an act or succeeded to such act from one of the pro-Japanese and anti-national actors decided by the Committee on Finding the Truth of Anti-National Acts under Article 3 of the Special Act on the Finding the Truth of the Truth of Anti-National Acts under the Japanese Rule, among those who committed anti-National Acts under the Japanese Rule, shall be deemed to be subject to the final judgment pursuant to Article 2 subparag. 1 of the Act, unless the Committee has decided to be a person who committed an anti-national act."

(2) In addition to the language, structure, purport, etc. of the aforementioned relevant provisions, Article 2 Subparag. 1 of the Act provides for the definition of “pro-Japanese and anti-national actors” in Article 2 Subparag. 1, but the Act stipulates that pro-Japanese and anti-national actors shall designate the property acquired or inherited in return for cooperation with the Japanese sovereignty from the opening of the Japanese War to August 15, 1945 as “pro-Japanese property”; and ultimately, through certain procedures such as the investigation by the Investigation Committee on Property of Pro-Japanese and Anti-National Collaborators; and (2) the proviso of the Addenda of the instant Act appears to be prescribed not to apply the amended provisions for the sake of legal stability in cases where a judgment becomes final and conclusive based on the premise of a specific dispute over a specific property of pro-Japanese and anti-national actors, it is reasonable to view that the proviso of the proviso to the proviso to the instant proviso to the proviso to the Article 2 of the Act does not apply only to a case where the judgment on pro-Japanese and anti-national actors’s property becomes final and conclusive.

(3) According to the reasoning of the judgment below, the court below rejected the plaintiff's claim that the plaintiff filed an administrative litigation on February 21, 2008 against the National Reversion Order (Seoul Administrative Court No. 2008Guhap7564) of the committee on the land of 24m2 and 191m2, which was located in Seocheon-si, Seocheon-si ( Address omitted), and that the plaintiff's appeal was dismissed and the plaintiff's winning judgment became final and conclusive (hereinafter "previous final judgment"). The previous final judgment is related to the revocation lawsuit against the "State Reversion Order on November 22, 2007, the land of this case," which is separate property, and that the above judgment becomes final and conclusive, and that the State's decision on the land of this case does not apply to this case.

(4) In light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the scope of application of the supplementary provision of this case and in failing to exhaust all necessary deliberations, as otherwise alleged in the ground of

2. Regarding ground of appeal No. 3

A. In the amendment of a law, the trust of the parties to the order of the former law is reasonable and reasonable, and the public interest purpose to achieve a new legislation is not justified because the party’s damage caused by the amendment of a law is extremely serious, the new legislation shall not be allowed in light of the principle of trust protection, etc. Provided, That the new legislation is inevitable to change flexibly due to the necessity of changes in social environment or economic conditions. Since conflicts of interest between the changed new legal order and the existing legal order are inevitable, all the expectations and trust of the citizen are not to be protected as constitutional right, and the protection should be determined by comparing and balancing the public interest to be achieved through the need to protect the trust of the person who trusted the existing system and the new system (see, e.g., Constitutional Court en banc Decision 2005Hun-Ma222, Oct. 30, 2008).

B. According to the reasoning of the judgment below, the court below rejected the following: (a) the application of the provision of the Act on the Reversion of Pro-Japanese Property may be restricted by the former Act on the Reversion of Pro-Japanese Property; (b) the main text of Article 3(1) of the former Act on the Reversion of Pro-Japanese Property does not belong to the State only when the Committee makes a decision on the reversion of pro-Japanese Property to the State; and (c) the amendment of the Act on the Reversion of Pro-Japanese Property should be retroactively owned by the State retroactively at the time of the act of cause, such as acquisition or donation; and (d) the amendment of the Act on the Reversion of Pro-Japanese Property constitutes a violation of the former Act on the unconstitutionality of the provision on the prohibition of ownership transfer to the State pursuant to the Act on the Reversion of Pro-Japanese Property or the Act on the unconstitutionality of Property; and (d) the amendment of the Act on the Reversion of Property to the extent that it can be deemed that the new provision on the prohibition of acquisition or donation of pro-Japanese property can be established.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the ground of appeal, the lower court did not err by misapprehending the legal doctrine on the unconstitutionality of the Addenda provision of this case,

3. Regarding ground of appeal No. 4

A. The lower court determined that the presumption of pro-Japanese property for the instant land did not be reversed on the ground that the Nonparty, a pro-Japanese and anti-national offender, acquired under the circumstances during the Japanese colonial period, was not recognized as a pro-Japanese property pursuant to the latter part of Article 2 subparag. 2 of the Pro-Japanese Property Reversion Act, and in full view of various circumstances, the Nonparty’s land in question, which was circumstances in the future, can not be deemed as having accepted a considerable probability as to the fact that the old legal relations or de facto ownership, which served as the basis of the circumstance, had already existed before the Japanese War, was not re-established.

B. In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of the meaning of pro-Japanese property under Article 2 subparagraph 2 of the Act on the Reversion of Pro-Japanese Property and the legal principles as to the reversal of presumption of pro-Japanese property, or failing to exhaust all necessary deliberations,

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.

Justices Kim Shin (Presiding Justice)