2012Na6487 Removal, Delivery, etc.

[Defendant-Appellant]

Cheongju City

Representative Market Han-hoon

Law Firm Cheongung Law, Attorney Cheong-ro et al.

Attorney Lee In-bok

Cheongju District Court Decision 201Da7550 Decided November 1, 2012

September 10, 2013

November 5, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiffs' claims (including the part extended in the trial) and incidental appeal are all dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim and incidental appeal

The defendant removes the roads installed on each land listed in the separate sheet, and delivers each of the above discussions to the plaintiffs. <2,26,400 won per annum 20% per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment, and from November 1, 201 to the day after the completion of delivery of each of the above lands, the defendant shall pay to the plaintiffs the money equivalent to 356,000 won per annum from November 1, 201 to the day after the completion of delivery of each of the above lands (the plaintiff added a claim for late payment while filing a supplementary lawsuit at the trial).

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by taking into account the whole purport of the pleadings as a whole in each entry of Gap evidence 1 to 5 (including a serial number, hereinafter the same shall apply).

A. The Sil Dou Doudong, which is the owner of each of the lands listed in the separate sheet (hereinafter referred to as “each of the lands in this case,” and, in individual cases, the land listed in Paragraph 1 of the same list, for example, according to the sequence thereof, was referred to as “the land listed in Paragraph 1 of the same Table.” The Dou Doudong Doudong, which was the Republic of Korea, died on January 20, 194, was the sole heir while succeeding to Australia, and thereafter, the Plaintiffs, who were the children, became co-inheritors as a result of the death on September 23, 1995 of this case.

B. As each of the instant lands was incorporated into a road site in the 1920s, the land category was changed to a road. The Defendant occupied and managed each of the instant lands as a road from around the above time. The assertion and determination on February 2, 198 were made.

A. The parties' assertion

(1) Summary of the Plaintiff’s assertion

Since the Defendant without legitimate authority occupies and uses each of the lands of this case as a road, it is obligated to remove the road installed on each of the lands of this case to the Plaintiffs, who are the owners of each of the lands of this case, and deliver each of the lands of this case. The amount of unjust enrichment equivalent to the rent for each of the lands of this case, each of which is KRW 46,226,40 (the part from March 22, 2001 to October 31, 201) and pay money at the rate of KRW 356,00 per month from November 1, 201 to the completion date of delivery.

(2) The defendant's argument

(A) Each land of this case is legally acquired from Dou-gu, Dou General or the defendant in accordance with the relevant provisions, such as Land Expropriation Order, at the time of Japanese colonial rule.

(B) Each of the instant lands constitutes the property of pro-Japanese and anti-national actors under the Special Act on the Reversion of Property Pro-Japanese and Anti-National Collaborators to the State, and its ownership shall be deemed to have been reverted to the State.

(C) Since the 1920s, the Defendant occupied each of the instant land with its intention to own it, so the acquisition by prescription for possession of ownership or superficies or servitude has been completed after the lapse of 20 years thereafter.

(D) The △△△○○○○○○ University, along with other adjacent lands owned by it, donated each of the lands of this case to the Department or the Defendant, or waived the exclusive right to use and benefit therefrom.

(E) Each of the instant lands has been used as a road since the 1920s, which was the Japanese colonial occupation period, to the present 90s, and it constitutes abuse of rights to seek removal of the said road and delivery of each of the instant lands.

(F) Even if all of the above arguments are without merit, the part of the claim for return of unjust enrichment equivalent to the rent for each of the lands of this case, which was retroactively counted from the date of the filing of the lawsuit of this case, was extinguished at the expiration of the extinctive prescription period.

B. Determination

(1) Whether each of the instant lands was acquired

At the time of the Japanese occupation, there is no evidence to acknowledge that the Japanese occupation acquired each of the lands of this case from the Do governor Do governor Do governor or the defendant in accordance with the relevant provisions, such as Land Expropriation Order.

Therefore, this part of the defendant's argument is without merit.

(2) Whether the person committing the pro-Japanese acts owns the property

(A) Relevant statutory provisions

Special Act on the Reversion of Property Owned by Pro-Japanese and Anti-National Collaborators to the State.

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "pro-Japanese and anti-national actors to whom the property belongs to the State (hereinafter referred to as "pro-Japanese and anti-national actors");

a person who falls under any of the following items:

(a) An act under subparagraphs 6, 8, and 9 of Article 2 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule;

A person (including persons of distinguished services and distinguished services): Provided, That this shall not include persons falling under any of the following:

The materials for pro-Japanese activities under Article 4, such as those who actively participated in the independence movement after the fact;

Any person determined by the Industrial Investigative Committee shall be an exception.

(b) The Order of Finding the Truth of Anti-National Acts under Article 3 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule;

A person who has received, or succeeded to, a commission from the Japanese system among pro-Japanese and anti-national actors decided by the original council: Provided, That this shall not apply

A person who refuses or returns his/her act or actively participates in an independent movement after his/her act is made;

2. The term "property of pro-Japanese and anti-national actors (hereinafter referred to as the "property of pro-Japanese")" means the infringement of national sovereignty by a pro-Japanese and anti-national actors.

Price for cooperation with the Japanese colonialism from the beginning of the war of Russ and the Japanese War to August 15, 1945

It refers to the property bequeathed or donated upon knowing that the property is acquired or inherited or that is a pro rata property;

(c) Property acquired by a person pro-Japanese and anti-national act from the opening of the war of Russ/Japan to August 15, 1945 in such cases;

shall be presumed to have been acquired in return for the act of friendship.

Article 3 (Reversion, etc. of Property Belonging to the State)

(1) Pro-Japanese property (use, possession, or management of foreign embassies or armed forces by international conventions, agreements, etc.)

property used, possessed, or managed by the State among the pro-Japanese property and pro-Japanese property;

(including) shall be owned by the State at the time of such act, such as acquisition or donation. However, a third party has acted in good faith.

Rights acquired by bill or by payment of a reasonable price shall not be prejudiced.

Article 4 (Establishment of Investigation Committee on Property of Pro-Japanese Collaborators)

In order to deliberate and resolve on matters concerning the investigation, management, etc. of pro-Japanese property under the President;

The Investigation Committee on Property of Korean Collaborators shall be established.

/ Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule

Article 2 (Definitions)

For the purpose of this Act, the term “friendly and anti-national act” means the war of Russday in which the seizure of national sovereignty by the Japanese colonialism has started.

6. The act of entering into or signing a treaty which infringes on the State's rights, such as the Japan-Japan Merger Treaty, etc., or the act of gathering it;

9. Activities as the Vice-Speaker, Vice-Speaker, adviser or senior secretary of the Joseon General;

(B) Facts of recognition

The following facts may be acknowledged, comprehensively taking account of each of the statements in Gap evidence Nos. 3 through 5, Eul evidence Nos. 1 through 3, 18, 19, 22, and 27, and whether all of the arguments are taken.

1) 1904. 2. 8. 러 · 일전쟁이 발발한 이후, ●●●은 괴산군수, 청주군수, 충청 북도 관찰사서리 등을 역임하고, 1911. 1. 6.부터 청주군 지방위원, 1911. 7. 13.부터 1920 .경까지 충청북도 참사, 1913. 5. 31.부터 1918.경까지 충청북도지방토지조사위원 회 위원, 1916. 5. 26.부터 메이지신궁봉찬회 조선지부 충청북도 위원, 1920. 12. 20. 부 터 충청북도 평의회원 등을 거쳐, 1924. 4. 27.부터 1927. 4. 26.까지 조선총독부 중추 원 참의로 재직하였으며, 이후에도 1929. 5. 1.부터 조선박람회 평의원, 1933. 5. 11. 부 터 충청북도의회 의원 및 부의장, 1933 . 10.경부터 조선신궁봉찬회 고문 및 의원, 1934.경부터 충청북도 국방의회연합회 부회장 및 시중회 의원, 1935. 9.경부터 어봉천 봉찬회( 御奉遷奉贊會) 부회장 , 1937. 7. 30.부터 충청북도 군사후원연맹 의원 및 부회 장, 1939. 5.경부터 국민정신총동원조선연맹 의원, 1941. 10.경부터 조선임전보국단 발 기인 및 의원 등으로 활동하였는데, 조선총독부로부터 1915. 11. 10. 대정 대례기념장 (大正大禮記念章), 1926.경 정7위, 1928. 11. 16. 소화대례기념장(昭和大禮記念章), 1935. 10. 1. 조선총독부 시정 25주년 기념 표창 등을 받았다 .

2) Of each of the instant lands, the land cadastres (not having been lost due to columns before June 25, 191) of the instant lands are indicated as follows: As to the instant land on November 18, 191; as to the instant land on November 25, 1911; as to the instant land on November 26, 1911; as to the instant land on November 26, 1911; as to the instant land on September 28, 1913, as to the instant land on September 12, 1913; as to the instant land on January 3 through 6, 1914; as to the instant land on January 20, 1914, the instant land on October 1, 1914; and as to the instant land on April 12, 1928, the ownership of each of the instant land was transferred.

3) Of each of the instant lands, the land Nos. 1 through 8 remains in unregistered state, and registration has been made with respect to the land Nos. 9 through 12 of the instant case, and the Dou-gu Dou-gu Dou-gu Dou-gu Dou-gu Dou-si, on July 31, 1917, on the land No. 11 of the instant case, and on July 31, 1920, on the land No. 10 of the instant case on July 25, 1917, respectively, completed the registration of ownership transfer on the land No. 9 and 12 of the instant case on February 27, 1989, and on the land No. 10 and 11 of the instant case on March 2, 1989, respectively, completed the registration of ownership transfer on the land of the instant case on January 20,

(C) Whether pro-Japanese actors are pro-Japanese actors

In full view of the provisions of subparagraph 1 (a) and (b) of Article 2 of the Special Act on the Reversion of Property for Pro-Japanese Collaborators to the State (hereinafter referred to as the "Act on the Reversion of Property for Pro-Japanese"), and Article 2 subparagraph 9 of the Special Act on the Finding the Truth of Anti-National Acts under the Japanese colonial Rule (hereinafter referred to as the "Act on the Finding of Anti-National Acts"), a person who was employed as a member of the Staff General of the Joseon General shall immediately constitute an anti-National Collaborators without the decision of the Committee on Finding the Truth of Anti-National Acts, unlike the case of a person who received or succeeded to an act from the Japanese colonial rule, immediately falls under the anti-National Collaborators to the anti-National Collaborators to the Republic of Korea, unless the Committee on Finding the Truth of Anti-National Acts by actively participating

According to the facts established above, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

(D) Whether the property is pro-Japanese

1) If the registration of ownership transfer has been made, not only the third party but also the former owner is presumed to have acquired ownership by legitimate grounds for registration (see, e.g., Supreme Court Decisions 2004Da27273, Sept. 24, 2004; 2010Da7504, 75051, Jan. 10, 2013).

In addition, the entry into the land cadastre is presumed to be consistent with the truth unless there is any obvious counter-proof (see, e.g., Supreme Court Decision 85Meu2508, Mar. 10, 1987) and Article 2 of the former Land Cadastral Rule (Ordinance of the Ministry of Government Administration and Home Affairs No. 45, Apr. 25, 1914) provides that the matters concerning the transfer of ownership can not be registered on the land cadastre unless a notice of registration management is given. Thus, the entry into the change in the land cadastre cannot be deemed to have been made by the notification of a registration officer in accordance with the above provision (see, e.g., Supreme Court Decisions 92Da12216, Jun. 26, 1992; 92Da3083, Feb. 26, 1993).

Meanwhile, it cannot be denied that the circumstance through the land and forest survey project, in principle, begins with the owner’s report and the survey of the land, forest and field, the preparation of the land, forest and forest survey division, and the cadastral map and forestry map, and the procedure for public announcement and objection after the formation of the situation is confirmed. However, as the modern legal relationship began to be transplanted in Korea through Japanese colonial rule, there have been a lot of confusion about the ownership attribution. Accordingly, it is widely known that the land and forest survey project was used as a means of removing the land by Japanese or Japanese-national actors, and that the land and forest survey project were not used as a means of removing the land by the owner’s report, and that the land and forest survey project were not used as a means of removing the existing forest and field, and that the land and forest survey project is merely a procedure of obtaining the ownership of the relevant land and forest under the name of 201, 201, 300, 300, 201, 30, 201, 30, 201.

2) According to the facts established above, △△△△△△, a pro-Japanese and anti-national actor, barring special circumstances, it is reasonable to deem that the ownership of each of the instant lands was acquired by the circumstance or transfer of ownership between November 18, 1911 and April 12, 1928, within the period from February 8, 1904 to August 15, 1945, the date of the outbreak of the Japanese War, barring special circumstances. Therefore, each of the instant lands is presumed to be the pro-Japanese property acquired in return for the pro-Japanese act, as prescribed by Article 2 subparagraph 2 of the Pro-Japanese Property Confiscation Act.

3) As to this, the Plaintiffs asserts that each of the instant lands does not constitute pro-Japanese property. To reverse such presumption power under Article 2 subparag. 2 of the Act on the Reversion of Pro-Japanese Property, the Plaintiffs must prove the existence of a fact against the presumption that the acquiring time of the property is the death from the opening of the Japanese War to August 15, 1945, or that the property acquired is not a consideration for pro-Japanese activities (see Supreme Court Decision 2011Du31390, May 23, 2013).

In full view of the evidence evidence evidence Nos. 7, 9, and 11, it is determined that the pro-Japanese act property investigation committee cancelled the ruling of commencement of investigation on April 24, 2009 on the ground that there is insufficient evidence to find that the land Nos. 10 and 12 of this case constituted pro-Japanese property under subparagraph 2 of Article 2 of the Pro-Japanese Property Reversion Act, and also the cancellation of the ruling of commencement of investigation on several occasions on the ground that part of the other land owned by Dou Dou Dou, other than each of the land of this case was owned.

However, the main text of Article 3(1) of the Act on the Reversion of Pro-Japanese Property stipulates that "the property shall belong to the State at the time of the act of causing cause, such as acquisition and gift," and does not stipulate that the reversion of the State shall take effect only if the meeting of investigating committee members of pro-Japanese Collaborative Acts' Property is decided. Further, according to Article 9 of the same Act, the above committee's activity period is limited to four years and may be extended only once for two years. As such, it is necessary to continuously resolve the issue of reversion of pro-Japanese Property even after the above committee's activity is terminated. Thus, the pro-Japanese property under Article 2 subparagraph 2 of the same Act is not owned by the State only after the committee makes a decision on the reversion of the State, but it shall be owned by the State as a matter of course retroactively to the time of the act of causing cause, such as acquisition and gift, etc., and the decision on the reversion of the State shall have the nature of the so-called quasi-legal act (see, e.g., Supreme Court Decision 2008Du13491).

Therefore, the above circumstances alone are insufficient to reverse the presumption that each of the instant lands is a pro-Japanese property, and otherwise there is no evidence to prove that the time of acquisition of each of the instant lands is the time of acquisition from Russ and the Japanese War, from August 15, 1945, the court’s conviction is shaking, or that each of the instant lands is not a price for pro-Japanese activities.

(e) Sub-decisions

Therefore, it is reasonable to view that each of the lands of this case is pro-Japanese property as provided by Article 2 subparagraph 2 of the Act on the Reversion of Pro-Japanese Property, and all of the lands of this case are reverted to the State retroactively to the time of acquisition of each of the lands of this case pursuant to the main sentence of Article 3 (1) of the same Act. Thus, it is reasonable to view that the land of this case was owned by △△△△△△△△△△△, which is the ownership of each of the lands of

3. Conclusion

Therefore, the claim of the plaintiffs in this case shall be dismissed for all reasons. However, since the judgment of the court of first instance is unfair by different conclusions, the judgment of the court of first instance shall be revoked, and all the claims and incidental appeal of the plaintiffs, including the extended parts in the trial, shall be dismissed.

Dog-Appellee (Presiding Judge)

Standresponding

V. V. M.D.