Plaintiff 1 and four others (Seoul General Law Firm, Attorney Maximum Intervention, Counsel for the plaintiff-appellant)

Pro-Japanese Collaborative Property Investigation Commission (Government Legal Service Corporation, Attorneys Go Dong-bl et al., Counsel for defendant)

November 13, 2009

1. All of the plaintiffs' claims are dismissed.

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

The Defendant’s decision on April 10, 2009 against Plaintiff 1, the State’s decision on the land indicated in Paragraph 1 of the Attached Table against Plaintiff 2, the State’s decision on the land indicated in Paragraph 2 of the same Table against Plaintiff 2, the State’s decision on the land indicated in Paragraph 3 of the same Table against Plaintiff 3, the State’s decision on the land indicated in Paragraph 4 of the same Table against Plaintiff 4, and the State’s decision on the land indicated in Paragraph 5 of the same Table against Plaintiff 5, respectively.

1. Details of the disposition;

The following facts do not conflict between the parties, or can be acknowledged by adding the whole purport of the pleadings to the descriptions of Gap evidence 1, Gap evidence 2, Gap evidence 3, Gap evidence 4, Gap evidence 5, Gap evidence 6, Gap evidence 7, Gap evidence 8, Gap evidence 9, Gap evidence 21, Gap evidence 22, Gap evidence 23, Gap evidence 24, and Gap evidence 25.

A. Plaintiffs 1, 2, 4, and 5 are the deceased Nonparty 2’s children, Plaintiff 3 is the wife of Nonparty 2, Nonparty 2 is the deceased Nonparty 3, and Nonparty 3 is the deceased Nonparty 1 (the Nonparty of the Supreme Court’s judgment).

B. On June 30, 191, Nonparty 1: (a) received each of the following circumstances, on June 30, 191: (b) Cown-gu, Dobong-gu, the land of the same Ri (number 2 omitted); (c) land of the same Ri (number 4 omitted); (d) land of the same Ri (number 5 omitted); (e) land of the same Ri (number 6 omitted); (g) land of the same Ri (number 7 omitted); (d) land of the same Ri (number 8 omitted); and (e) land of the same Ri (number 9 omitted); and (e) land of the same Ri (number 9 omitted); and (e) land of the same Ri (number 9 omitted) before subdivision (hereinafter referred to as “land before subdivision”).

(c) Subsequent to that time, the land listed in the attached Table 1-A (hereinafter referred to as “land number 10 omitted”) on the same Ri (number 2 omitted), which is specified as “land stipulated in the attached Table 1-A (hereinafter referred to as “land number 10 omitted”), land (number 11 omitted); land (number 12 omitted); land (number 12 omitted); land (number 13 omitted); land (number 5 omitted); land (number 5 omitted); land (number 14 omitted); land (number 6 omitted); land (number 15 omitted); land (number 16 omitted); land (number 17 omitted); land (number 8 omitted); land (number 18 omitted); land (number 18 omitted); land (number 18 omitted); and (b) land number 19-1 omitted in the same Ri (number 8 omitted);

D. Among them, with respect to the land (number 10 omitted), (number 10 omitted), (number 11 omitted), land (number 11 omitted), land (number 12 omitted), land (number 12 omitted), and land (number 19 omitted) on June 20, 2005, the ownership transfer registration was completed in the name of Plaintiff 1 on June 20, 2005 through Nonparty 2, respectively, through Nonparty 2, with respect to (number 5 omitted), land (number 18 omitted), land (number 1 omitted), land (number 1 omitted), land (number 15 omitted), land (number 16 omitted), land (number 17 omitted), land (number 17 omitted), land (number 27, and land (number 205 omitted), land number 205, Plaintiff 36.25, and land number 205, and (5) land registration was omitted in the name of Nonparty 36.

E. On April 10, 2009, the Defendant rendered a decision to state the purport of the claim against the Plaintiffs on the grounds that Nonparty 1 constitutes pro-Japanese and anti-national actors under Article 2 subparagraph 1 (a) of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators (hereinafter “Special Act”) and each of the above lands is recognized as pro-Japanese property under subparagraph 2 of the same Article.

2. The plaintiffs' assertion

The plaintiffs asserted that the defendant's above decision was unlawful for the following reasons.

A. Article 2 Subparag. 2 and Article 3(1) of the Special Act, which served as the basis for the Defendant’s above decision, provides that pro rata property shall be retroactively owned by the State at the time of the act of causing cause, such as acquisition and donation. This is unconstitutional as it infringes on property rights by depriving of property by retroactive legislation and violating the principle of excessive prohibition (hereinafter “first assertion”).

B. If the requirements for pro-Japanese property include “acquisition” as prescribed by Article 2 Subparag. 2(a) of the Special Act due to the fact that the Defendant is a pro-Japanese and anti-national offender, but only if it proves that the Defendant is a pro-Japanese and anti-national offender, all the real estate owned by it should be reverted to the State, and thus, it should not be deemed that the acquisition under the Special Act was based on the circumstances, such as this case, (hereinafter “second assertion”).

C. The land before subdivision was owned by Nonparty 1 and Nonparty 4 and 5, who was Nonparty 1 and his shipbuilding, in a situation where a considerable amount of property could have been owned as a result of growing a high rice sleep before the Japanese colonial era. In particular, the land before subdivision was just the inherent property that Nonparty 1 received from the fleet, but is not a pro-Japanese property (hereinafter “third assertion”).

D. Since Nonparty 1 and his inheritors, including the Plaintiffs, have acquired prescription by being registered as owners near 100 years after the assessment of each of the above lands before and after the split-off, the Defendant is obligated to transfer ownership to the Plaintiffs, and accordingly, the Defendant, who is in such position, cannot make the said decision (hereinafter referred to as “the allegation No. 4”).

3. Determination

A. As to the first argument

(1) Whether Article 13(2) of the Constitution is violated

(A) Chapter 3 of the Decree on the National Foundation of the Republic of Korea stipulates in paragraph 6 that the provisional government of the Republic of Korea shall confiscate Japan's property and its father's property to be national property, and Article 101 of the Addenda to Chapter 10 of the Constitution of the Republic of Korea promulgated and enforced on July 17, 1948 provides that "the National Assembly, which enacted this Constitution, may establish a special law that punishs malicious anti-national acts before August 15, 4278 (the 1945, the 1945), and the current Constitution provides that "the Korean people who have light and traditioned in the old history and tradition, succeed to the legal system of the provisional government of the Republic of Korea established on the 3th and 1st campaign."

As above, the succession to the legal tradition of the provisional government of the Republic of Korea, which was established by the specialized body of the Constitution of the Republic of Korea with norm since it declares the constitutional decision of the people who are the legislative power of the Republic of Korea, means that the Republic of Korea was achieved based on the contribution and sacrifice of the independent movement fighted against Japanese colonial rule, and that the starting point of the Constitution is to build a new country which succeeded to the legal tradition of the provisional government of the Republic of Korea by denying Japanese colonial rule. The legislative spirit of such provisional government of the Republic of Korea, Article 101 of the Addenda to the Constitution, Article 101 of the Constitution, and the legislative spirit of the current Constitution is to exclude the Republic of Korea from the object of protection of property rights acquired by the non-national actors of the Republic of Korea in return for friendship, in cooperation with Japan during the Japanese colonial rule, and at the same time, it is the strong expression of the people, who are the legislative power of the Republic of Korea, to realize the basic ideology of Japanese colonialism and to correct the state's wrong disposal of property during the past nation's.

Therefore, the provisions of the Special Act stipulating the reversion of pro-Japanese property to the State as above stipulate the justification for the reversion of the State in accordance with the constitutional ideology that the pro-Japanese and anti-national acts cannot be the property acquired, inherited, bequeathed, or donated in return for pro-Japanese acts. Thus, the mere fact that pro-Japanese property belongs to the State retroactively as claimed by the Plaintiffs cannot be deemed as infringing on the people’s property rights guaranteed by the Constitution.

(B) On the other hand, even in cases where a person is deprived of an individual’s legal status that has been formed by the existing law and has already been deprived of it through an ex post facto legislation, it is exceptionally allowed to do so in cases where, as a general rule, a citizen could have expected retroactive legislation, or a person’s trust interest could be protected due to uncertainty and confusion of the legal status, there is no loss of a party by retroactive legislation or minor, or where the cause of substantial public interest that takes precedence over the request for protection of trust is justified (see, e.g., Constitutional Court Order 97Hun-Ba76, 98Hun-Ba50, 51, 52, 54, 55 (merged), etc.).

However, pro-Japanese acts constitute a serious anti-state act against the nation and the government, which justify the acts of aggression by going against the Japanese colonialism, which led to the strong illegal rule by force against Korea, and pursuing the honor and pro-Japanese film of the descendants of the deceased and children in return for the suppression of the anti-Japanese independence movement to recover national sovereignty, which constitutes a serious anti-state act against the nation and the government. The collection of pro-Japanese properties acquired in return for such pro-Japanese acts constitutes a violation of the provisions of the Special Act realizing the spirit and spirit of the nation, because the public interest needs to immediately establish a national spirit is serious, rather than the violation of the Constitution. On the other hand, the party to whom the property is recovered pursuant to the Special Act does not violate the Constitution, but rather the other party to whom the property is recovered, knowing that he is a pro-Japanese or a person who received a legacy or donation while being aware that he is a pro-Japanese property, has lack legitimacy in acquiring the property itself and has succeeded to it without any consideration. Therefore, it cannot be objectively justified that the infringement of property rights by Article 13 of the Constitution cannot be objectively justified.

(2) Whether Article 37(2) of the Constitution is violated

(A) We examine whether the special provisions of Article 37(2) of the Constitution violate the principle of excessive prohibition in cases where the property rights on pro-Japanese property are included in the property rights protected by the Constitution of Korea.

1) The legitimacy of legislative purpose

Article 1 of the Special Act provides that "the purpose of this Act is to realize justice and to realize the constitutional ideology of the 3/1 movement, which is resistance against the Japanese colonialism, by devolving the property accumulated in the anti-national behavior that cooperates with the colonial rule of the Japanese colonialism, and strong our nation, by protecting a third party acting in good faith, thereby contributing to the State at that time, thereby contributing to the safety of transaction by promoting the safety of transaction." This is to ensure the safety of transaction by protecting a third party acting in good faith while consistent with the constitutional ideology of succeeding the legal tradition of the provisional government of the Republic of Korea established by the 3/1 movement, which is consistent with the constitutional ideology of succeeding the legal tradition of the provisional government of the Republic of Korea established by the 3.

(ii) the adequacy of the means;

As a way to achieve the above legislative purpose, there may be various methods such as criminal punishment of pro-Japanese and anti-national actors, restrictions on the public rights, and the recovery of property. However, the Special Act has selected the method of reverting pro-Japanese property to the State. In particular, in order to achieve the above legislative purpose, the pro-Japanese property is defined as “property acquired in return for cooperation with the Japanese colonialism from the opening of the war of Rus and the Japanese War, in which the anti-national act committed the deprivation of national rights, or the inherited property or the inherited property knowing that it is the pro-Japanese property,” and the pro-Japanese and anti-national actors also clearly stipulate that the person prescribed in the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule is clearly defined as the person stipulated in the Special Act on Finding the Truth of the Truth of Anti-National Acts, and thus, the appropriateness of the means of communication is recognized

Meanwhile, the latter part of Article 2 subparagraph 2 of the Special Act provides that "the property acquired by a pro-Japanese act from the opening of the Japanese War to August 15, 1945 shall be presumed to be the property acquired in return for pro-Japanese act" and the burden of proof is converted to the owner who deprived of ownership. However, the burden of proof cannot be said to be unconstitutional only on the ground that the burden of proof is converted to that of matters to be prescribed by Acts and subordinate statutes, considering the legislative purpose, the passage of the period, the living area and the facilitation of access to data, etc., and the above provision of the Special Act cannot be deemed to be a violation of the Constitution, unless the burden of proof is deemed to be changed. In addition, if it is deemed that the above provision is not pro-Japanese property due to the judgment of the court in the specific litigation process, the above provision is merely an estimate provision that can exclude the application thereof, and it cannot be deemed that the above provision is in violation of the Constitution

In other words, with respect to the burden of proof, it is almost impossible to prove that the defendant's property is acquired in return for pro-Japanese cooperation in the situation where the whole burden of proof is not exempted, but it is the fact that the person concerned is the pro-Japanese and anti-national offender, and that the property is acquired by the pro-Japanese and anti-national offender in question from the opening of the war of Russ and the war to the sunset, and that it is merely the fact that the acquired property is acquired in return for pro-Japanese cooperation. However, it is almost impossible to prove that the defendant's property has been acquired in return for pro-Japanese cooperation in the long half of the half of the century. However, the pro-Japanese and its descendants are most well known about the internal power of the property they hold, and there is a high possibility that the administrative agency should prove the legality of the administrative act, or if the administrative agency proves the considerable scope of grounds, it is not always prohibited under the Constitution, and it is not a violation of the provisions of the above presumption-Japanese and its substantial relation.

3) Whether the infringement is minimum

From among various kinds of pro-Japanese acts under the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule, the Special Act limits the scope of cases to those who are subject to the application of the principle of substantial and clear acts, and those who committed pro-Japanese and anti-national acts to those who have committed pro-Japanese and anti-national acts to whom the degree of pro-Japanese is extremely serious. In addition, Article 3 of the Special Act provides for exceptions to the application of the principle that “any person, etc. who refuses or reflects the writing or actively participates in the independence movement after the death” may be recognized. In addition, the proviso of Article 3 of the Special Act takes into account not only the protection of a third party, etc. in the event of the transaction of pro-Japanese and pro-Japanese property, but also it is possible to bring a dispute as to whether they are pro-Japanese property through the proof during the specific litigation process.

(iv) a balance of the legal interests;

Although the recovery of pro-Japanese property acquired by a pro-Japanese and anti-national act in return for pro-Japanese acts is consistent with the ideology of the Constitution even if the time is delayed, it is important for the public interest. On the other hand, the disadvantage suffered by the other party who is subject to the recovery of the property is merely the recovery of the property formed in return for pro-Japanese and anti-national acts, not the property legitimately acquired through his/her own effort, and thus, it can be deemed extremely insufficient. Therefore, it is reasonable to deem that the special law provisions were likely to be in violation of

(B) Therefore, the special law provisions cannot be deemed to violate the principle of excessive prohibition as stipulated in Article 37(2) of the Constitution.

B. As to the allegations Nos. 2 and 3

(1) Determination of pro-Japanese property

(A) Article 2 Subparag. 2 of the Special Act provides that “Japanese property” means the property acquired in return for cooperation with the Japanese colonialism from the opening of the war of Russ and the Japanese War, in which the anti-Japanese act committed the invasion of national sovereignty to August 15, 1945, or received a legacy or donation with the knowledge that such property is inherited or that such property is inherited. In this case, the property acquired by the anti-Japanese national act from the opening of the war of Rus and the Japanese War to August 15, 1945 shall be presumed to be the property acquired in return for the act of friendship.”

(B) The public health team and the non-party 1 entered the internal library of June 1907 after the date of the war of February 1904, through the head of Gangwon-do, the head of Gangwon-do, and the head of the internal library of June 2, 1907, who was in charge of the cadastral administrative affairs under the direction of the head of the internal branch of the local bureau from 1908. The non-party 1 was appointed as the vice governor of the Korean Government on October 1, 1910 immediately after the incorporation into the Republic of Korea. The non-party 1 participated in the 1st of August 1912, 1913, the non-party 1 participated in the 1st of December 107, 1913, the non-party 1 participated in the 1st of May 15, 1926, and the fact that the 1st of May 196, 196 was justified for the public participation of the Korean Government."

On the other hand, the circumstances through the land survey project and forest land survey project created the ownership of the modern meaning for the first time by implementing the modern registration system based on the land cadastre and forest land register prepared as a result, which was conducted by the owner's report and had been conducted under the name of the reporter through a certain verification procedure. However, since the time was very confusion as a Japanese colonial rule and did not report the ownership or the situation concerning the unregistered real estate and forest land was performed, it does not necessarily mean that the system of the circumstance is nothing more than the procedure to confirm the existing ownership of the land or forest land owned by the person under the name of the circumstance. Since the person under the circumstance of the land or forest acquires the land or forest land at the original time, the existing legal relationship with the land is extinguished and becomes acquired by the creation of ownership due to the cause (see, e.g., Supreme Court en banc Decision 84Meu1773, Jun. 10, 1986).

(C) Therefore, the land before subdivision, which was assessed by Nonparty 1, an anti-national offender, at each time, is presumed to be pro-Japanese property pursuant to Article 2 Subparag. 2 of the Special Act.

(2) Whether the presumption has been destroyed

According to the evidence Nos. 10, A14, A17, A26, A27, A28, A32, A34, A35, A36, and A39, respectively, the following facts can be acknowledged: (a) on the land, where the remaining plaintiffs except for the plaintiff 3 from Nonparty 2 to Nonparty 4 are installed on the land to the non-party 4; and (b) some of the fleets were sleeped by the plaintiff 3, including the plaintiff 2 to the non-party 4; and (c) the fact that some of the fleets were sleeped by the plaintiff 3; (d) before the Japanese colonial era, there were many examples for installing graves in state-owned forests and fields; and (e) the family-friendly records of the non-party 1.

C. As to the fourth argument

First of all, there is no evidence to recognize that a grave has occupied the remaining land other than the land (number 1 omitted) as alleged by the plaintiffs.

Next, the main text of Article 3(1) of the Special Act provides that “The property of pro-Japanese and anti-national actors shall belong to the State at the time of the act of causing the acquisition, donation, etc., and the ownership of the State shall take effect only if the defendant's decision is made, and the period of the defendant's activity is only four years and only two years shall be extended only once (Article 9 of the Special Act). Thus, it is necessary to continuously resolve the issue of reversion of pro-Japanese property after the expiration of the period of activity. In light of the purport and contents of the above provisions, the pro-Japanese property stipulated in Article 2 subparagraph 2 of the Special Act shall not be owned by the State only when the defendant makes a decision to revert to the State, but it shall be deemed that the property is owned by the State as a matter of course retroactively to the time of the act of causing the acquisition, donation, etc. following the enforcement of the Special Act (see Supreme Court Decision 2008Du13491, Nov. 13, 2008).

D. Sub-determination

Therefore, each of the above arguments by the plaintiffs is without merit, and the above decision is legitimate on the premise that each of the above lands is pro-Japanese property pursuant to Article 2 subparagraph 2 of the Special Act.

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed.

[Attachment]

Judges Kim Hong-do (Presiding Judge)