Plaintiff 1 and one other (Law Firm Seocho, Attorney Park Sang-chul, Counsel for the plaintiff-appellant)

The Minister of Justice (Attorney Kim Yong-chul, Counsel for defendant-appellant)

November 3, 2011

Seoul Administrative Court Decision 2009Guhap18929 decided May 12, 2011

1. Revocation of the first instance judgment.

2. The disposition to vest the property of pro-Japanese and anti-national actors to the State on February 26, 2009 with respect to the forest land of 3,226 square meters and 1,948 square meters and 1,948 square meters in the same Dong-dong ( Address 2 omitted) Dong-dong on February 26, 2009.

3. The total costs of the lawsuit shall be borne by the defendant.

The phrase “( Address 2 omitted) 5,226 square meters” in the purport of the claim and appeal as indicated in the text of the disposition seems to be a clerical error of “( Address 2 omitted) 3,226 square meters.”

1. Details of the disposition;

A. Nonparty 1 (from August 22, 1867 to September 8, 1932) was the 23-year-old descendants of the Donam clan that set up the Honam Branch of Korea for the first time in February 1904, through the members of the control office, the Agricultural and Fishery Affairs Council's staff, and the library, who were appointed as the senior senior secretary of the Joseon General on October 1, 1910, and worked for the senior secretary by April 28, 1921.

B. On November 10, 1913, the non-party 1 completed the registration of ownership transfer on the ground of donation in the name of the non-party 8, who was the son of the non-party 9 and the non-party 10, who was the son of the non-party 10, in the name of the non-party 11 under the Act on Special Measures for the Registration, etc. of Ownership of Real Estate on August 21, 1981. The registration of ownership transfer of the above forest was completed under the name of the plaintiff 1 and the non-party 2, who was the son of the non-party 9, the plaintiff 2, who was the son of the non-party 11 and the non-party 9, and on February 12, 1958, the above forest was divided into the non-party 1's punishment (the address of the non-party 2 omitted), the 3,226 square meters and the 194 square meters of the above forest and the above forest omitted.

C. The Investigation Committee on Property for Pro-Japanese Collaborative Acts of the Republic of Korea (hereinafter “The Investigation Committee”) conducted an investigation into whether the forest in this case is the property of pro-Japanese and Anti-National Collaborative Acts of the Republic of Korea (hereinafter “property of pro-Japanese”) under Article 2 subparag. 1 of the Special Act on the Reversion of Property for Pro-Japanese and Anti-National Collaborative Acts of the Republic of Korea (hereinafter “The Act”), and on February 26, 2009, Nonparty 1 constitutes “pro-Japanese and Anti-National Collaborative Acts of the Republic of Korea to which the property belongs to the State” under Article 2 subparag. 1(a) of the Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborative Acts of the Republic of Korea. The forest in this case was retroactively disposed of at the time of acquisition of the forest in this case on the grounds that it is recognized that the pro-Japanese and Anti-National Acts of the Republic of Korea acquired the forest in this case in return for cooperation with the Japaneseism from the beginning of the war to August 15, 1945.

D. As the Investigation Committee finished its activities on July 12, 2010, the Defendant succeeded to the litigation affairs of the Investigation Committee pursuant to the “Rules on the Succession to Litigation Affairs Related to the Reversion of Property of Pro-Japanese Collaborators to the State”.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 7 through 9, Eul evidence 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(7) The plaintiffs asserted that, since the main sentence of Article 3 (1) of the Act on the Reversion of Property to be reverted to the State at the time of the act of acquiring the pro-Japanese property decided by the Investigation Committee as pro-Japanese property is against the Constitution, the property acquired in return for pro-Japanese act from the opening of the Russian War to August 15, 1945 is presumed to be an asset acquired in return for pro-Japanese act, and thus, the latter part of subparagraph 2 of Article 2 of the Act on the Reversion of Property to prove that the pertinent property is not a pro-Japanese act on behalf of the State (hereinafter referred to as the "Presumption provision of this case") is also against the Constitution. (3) Since the non-party 1 was not aware of the fact that the non-party 1 was established as the senior secretary of the Korean War, the plaintiff's act of acquiring the forest and field in this case's name was not an act of acquiring the forest and field in this case's name, the plaintiff was not an act of acquiring the forest and field in this case's name.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Change in the ownership of land and forest during the Joseon Dynasty and the situation of Japan

Although there was a previous view on whether the modern land ownership system has been established in the traditional shipbuilding society, the view that there was a modern land ownership system was significant in that most of the land was previously established in advance, and that it was possible to transfer land freely.In relation to the method of land transfer, it was possible to obtain the location of ownership certification by drawing up to the authorities in Daejeon, but the transfer of ownership was general in the private document called the gate at the time of shipbuilding, and the modern public announcement system was not established. Japan conducted land certification rules (O. 31, 1906) for the preparation of the registration system from the Japanese colonial era (O. 31, 1906), and prepared a land register (1907), a land lot register (1908) and a land lot register (1908) for the preparation of cadastral record and collection of land, and conducted a survey on the land register and a land lot register (1908) for the 19th National Land Survey to be conducted.

The land survey project, in principle, was different from the owner's report. The reason was that the owner's report was made in writing, and the content of the report was compared with the string list, but most of the circumstances were the same as the reported. On March 22, 1912, the previous land verification rules, shipbuilding real estate certificate order (in lieu of the land house certification rules and the land ownership certificate rules, the previous rules were converted into the form principle under the shipbuilding real estate certificate order if the existing rules followed the real estate ownership certificate), etc. were treated differently by requiring the owner who clearly proves his/her rights under the existing rules to enter the number of proof in the report for convenience, and entered the same in the summary of the land survey book. The temporary land survey station, after consultation with the local land survey committee, conducted a public announcement of the results, and became final and conclusive in the absence of an objection. The person dissatisfied with the situation was entitled to file a judgment with the Land Investigation Committee.

Meanwhile, after the 1908 Forest Act enters into force, the Joseon General Department made it clear that the reason is recognized in certain cases while implementing the "standard for classification of state-owned reasons for the mountain and US land (hereinafter "standard"). This is not a change in the principle of forest land ownership in Joseon at the time when the Clim Act enters into force, but a standard for recognition of the reason is established by reflecting the reality of forest ownership at the time. The above standard is a place where it is clear that the tax is imposed even if it is listed or not listed in the Climination ledger, (2) a place recognized as a reason before the enforcement of the Climination Rule, (3) a place recognized as a reason by the government agency prior to the enforcement of the Climination Rule, (4) a place recognized as a reason by the disposition of the Land Survey Ordinance, (5) a plaque with positive evidence, (7) a forest with a certificate returned, leased, or transferred by the government agency, (3) a place where the Climination Rule has been lawfully designated as an average amount of forest and fisheries, and (1) a place where it is legally designated as a three or more.

D. Determination

1) Whether the instant presumption provision and the reversion provision are unconstitutional

After the decision of the Constitutional Court on the constitutionality of the instant presumption provision and the reversion provision (see, e.g., Constitutional Court Decision 2008Hun-Ba141, Mar. 31, 201) was issued, the Supreme Court continued to confirm the constitutionality of the said provision in a specific case for the following reasons (see, e.g., Supreme Court Decision 2010Du3169, Jun. 24, 201). As long as there are no grounds to believe that the said provision is unconstitutional, the Plaintiffs’ assertion that the said provision is unconstitutional is groundless.

A) First, as to the instant presumption provision, a long time has elapsed since the dissolution work of the past history, i.e., the reversion of a pro-Japanese property, etc., takes place, and among them, it is extremely difficult for the State to prove that certain property is acquired in return for pro-Japanese cooperation due to the outbreak of a war, etc., on the other hand, it is extremely difficult for the State to prove whether the property is acquired in return for pro-Japanese cooperation. On the other hand, the acquisitor of the property or its descendants are keeping materials related to the acquisition of the property or are highly likely to know the details of the acquisition of the property most well-known. In light of such circumstances, it cannot be deemed unreasonable to deem that the presumption provision allows the purchaser of the property to prove the acquisition of the property. In comparison with the practical necessity of the presumption provision, the scope or burden of the burden of proof transferred to pro-Japanese and anti-national actors, etc. through such presumption is excessive in light of various circumstances, and thus, the presumption provision is deemed to have shared certain burden of proof to pro-Japanese and anti-national actors, etc.

B) Next, this case’s reversion provision constitutes a genuine class legislation, but even if it is a genuine class legislation, it shall be permitted under the Constitution in such cases as where the citizens could have anticipated retroactive legislation or the causes for substantial public interest that take place prior to the request for protection of trust are justified retroactive legislation. However, the retroactive deprivation of pro-Japanese property is an exceptional area where it is considered that the possibility of retroactive legislation cannot be ruled out generally, and it is difficult to see that infringement of legal stability or trust arising from the genuine class legislation, such as the instant reversion provision, is serious. However, since the constitutional request or public interest value of the legislative purpose to be achieved through this cannot be considerably high, it cannot be said that it is in violation of Article 13(2) of the Constitution solely on the ground that the reversion provision is a genuine class legislation.

C) In addition, the rules on attribution are aimed at realizing the constitutional ideology of the March 1st campaign, which is resistanceed to the Japanese colonialism. The 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 cases are limited to the subject of attribution as the pro-Japanese property of a person who committed a serious and obvious act of pro-Japanese group, and the exception is excluded for the persons determined by the Investigation Committee as those who actively participated in the independence movement after the act of pro-Japanese group. The pro-Japanese group offender can prevent the reversion of the State by proving that the property was not acquired as the consideration for pro-Japanese group, and the protection provisions for the third party acting in good faith are limited while pursuing the legislative purpose based on constitutional justification, such as the provision on the protection of the third party, and thus, it cannot be deemed that there is any element infringing on the nature of property rights guaranteed by the Constitution, or it violates the minimum principle of damage or the principle of excessive prohibition, or it violates the principle of property rights guarantee.

2) Whether the act constitutes pro-Japanese and anti-national actors

The main text of Article 2 subparag. 1 (a) of the Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (hereinafter "the Anti-National Truth Act") stipulates that "any person who commits an act under subparagraphs 6 through 9 of Article 2 of the Special Act on Finding the Truth of Anti-National Acts under the Anti-National Truth Act" shall be an anti-national act. Article 2 subparag. 9 of the anti-National Truth Act provides that "any person who acts as a vice-chairman, vice-chairman, adviser or witness" shall be an anti-national act: Provided, That the proviso of Article 2 subparag. 1 (a) of the Anti-National Truth Act provides that "Provided, That the same shall not apply to a person who is determined by the defendant as a person who, even if he falls under this case, refuses or pays such act, or actively participates in an independent movement after the fact-finding." In full view of the above provisions, a person who acts as the senior vice-president of the Joseon General shall be regarded as a anti-national act in itself, but it shall be excluded.

According to the statements in Eul evidence 1-1-3, since Non-party 1 was appointed as the Lieutenant on April 28, 1921, since Non-party 1 was appointed as the Lieutenant on October 1, 1910, and worked until April 26, 1924. At the time of 1910, Non-party 1 was a small number of persons elected in the position as 35 persons and 65 persons elected in the position as at the time of 1921, and Non-party 1 was paid allowances to create a theoretical basis for the colonial rule while working for the Japanese History. Thus, Non-party 1 can be recognized that he was paid the fact that Non-party 1 had been recognized as a public figure and had been engaged in the dacticule commemorative. Thus, Non-party 1 was not merely a mere appointment as the dactician, but was an activity suitable for that position.

Therefore, the non-party 1 is a pro-Japanese and anti-national offender under the Act on the Reversion of Pro-Japanese Property. Therefore, the plaintiff's assertion on this part is without merit.

3) Scope of application of the presumption provision of this case

The plaintiffs asserted to the effect that, prior to the circumstances, the reasons for acquiring ownership such as sale and inheritance are included in the Act on the Ownership of Property as well as merely confirming the existence of ownership cannot be included in the concept of acquisition. Thus, in this case, the point at which the non-party 1 succeeded to the forest of this case at the time of acquisition, rather than the time when the situation was determined, falls under the time of acquisition, and this is not subject to the presumption provision of this case since the transfer of Rus/L war. However, the Supreme Court has consistently determined after the judgment was rendered on June 10, 1986, that the situation of the land or forest is the original acquisition of the land or forest by the title holder of the land or forest, and that the existing legal relationship is all extinguished, and that the ownership is newly acquired due to the extinction of all the circumstances. Therefore, the plaintiffs' assertion that the situation constitutes the grounds for acquiring the forest of this case

On the other hand, the plaintiffs' assertion that the "acquisition" stipulated in the presumption provision of this case does not include the "acquisition" is highly likely to result from the possibility that the reversal of presumption in the case of circumstances may not be considered as pro-Japanese property because it is virtually impossible to reverse the presumption. In order to determine the legitimacy of the plaintiffs' assertion, it is necessary to examine not only the literal meaning of the above provision, the legislative intent, but also whether the presumption of pro-Japanese property may be destroyed. Therefore, this is

First, the presumption provision of this case does not stipulate the form of acquisition as above in the text of the law itself. Next, the legislative intent of the Act on the Reversion of Pro-Japanese Property is the case where the descendants of pro-Japanese and anti-national actors who did not make registration of preservation of ownership file a lawsuit on pro-Japanese property and won the lawsuit on pro-Japanese property. Thus, on the basis of the national consensus that such behavior cannot be presented, it can be found in the first time to be enacted to effectively block the lawsuit for return of the property by descendants of pro-Japanese and anti-national actors. In the process of the enactment of the above law, there was a consensus on the fact that the members of the Legislation and Judiciary Committee should invalidate even in the case where the pro-Japanese and anti-national actors acquired the property through the circumstance, and in detail, there was a discussion on how to include the situation, other than the legal act, in the "acquisition" as defined in Article 2 of the draft draft.

In light of the contents related to the land and forest circumstances in the shipbuilding period as seen earlier, it is possible to recognize it as private if the requirements set forth in the standards established after the enforcement of the 1908 Climation Act were met, and even in the case of forest land, it was subject to the issuance of a fraternity that served as the basis for the recognition of ownership, and in the case of land reconstruction, it is possible to prove by the shipbuilding real estate certificate order. As such, even in the case of forest land under such circumstances, the presumption may be reversed by proving that the property was not acquired as a kind of friendship but as it was confirmed that the ownership of private property was not acquired in the past, so the presumption provision cannot be deemed as unfairly infringing on property rights (see Supreme Court Decision 2010Du3169, Jun. 24, 201

4) Whether the presumption of pro-Japanese Property of this case was destroyed

A) Determination criteria

As seen earlier, in assessing the forest land, which is a re-developed according to the enforcement of the Land Investigation Decree, based on the principle of report, the owner, etc., who had already been recognized as the ground for the enforcement of the 1908 Sam forest Act. If the person under the circumstance of forest land at the time falls under pro-Japanese and anti-national actors, if he/she was an owner meeting the requirements under the 1908 Sam forest Act or the above standard requirements at the time of conducting the land investigation project, it is difficult to regard the forest acquisition as the property acquired as the property acquired for cooperation with the Japanese project, barring any special circumstance. In this case, the presumption of the Act on the Reversion of Pro-Japanese Property is broken

B) Recognized facts

(1) The clans of this case adopted Nonparty 22 years old, Nonparty 3’s son and Nonparty 4 as the head of Nonparty 3’s son. Nonparty 4 also adopted Nonparty 5’s son and took the son as the son. Nonparty 5’s son and Nonparty 1 as the son.

(2) On the instant forest land, Nonparty 6 and his wife 19-year-old son, Nonparty 7’s wife 10-year-old son 20-year-old son 20, Nonparty 21-old son 22-old son 5 and Nonparty 1’s son 1’s son 12-year-old son 22-old son 5 and Nonparty 1’s son 1’s son son son 1784 and 1911, respectively, in light of the time of the funeral death indicated in the son son son 1784. However, no entry was made in the inner column of the part of the instant forest land in question.

(3) Meanwhile, the instant forest land is prohibited from cutting trees and is used to raise trees in order to protect the said graves, which are located within the information of 1 information, and is surrounded by the surrounding land, and is surrounded by the site. The registration of preservation of ownership is completed in the name of the Guri-si (No. 4 omitted) Park Jong-si, the land adjacent to the instant forest, which is the land adjacent to the instant forest. Of the said graves, Nonparty 5 and Dongri-si, the biological parents of Nonparty 1, among the said graves, were scattered in (No. 2 omitted), and the remaining graves were buried in the same forest (No. 3 omitted) among the instant forests, and were buried in the same forest (No. 205).

C) Determination

In light of the above facts in the above judgment criteria, although the land adjacent to the forest of this case is owned by the clan, it cannot be readily concluded that the forest of this case is owned by the clan (Supreme Court Decision 96Da2729 delivered on June 14, 1996). The forest of this case seems to be a grave mountain where it was left to the clan descendants according to our traditional accident (refer to Supreme Court Decision 2002Da37320 delivered on February 11, 2003). Although the forest of this case did not contain any indication proving the existing ownership in the top column of the Land Survey Division on the forest of this case, although the forest of this case was left to the descendants other than the clan 1 after the non-party 1, it is difficult to view that the forest of this case was already acquired in return for cooperation with the forest of this case as property under the Forestry Act or the standard requirements under the Forestry Act at the time when it appears that the forest of this case was closed for the installation and management of the grave for a long time.

Therefore, the presumption of the pro-Japanese Property Reversion Act on the forest of this case is broken.

5) Sub-committee

Therefore, as long as the presumption of pro-Japanese property regarding the forest of this case is broken, without considering the plaintiffs' other arguments, the disposition of this case should be revoked in an unlawful manner.

3. Conclusion

Therefore, the first instance judgment is unfair, so it is so decided as per Disposition by accepting the plaintiffs' appeal and cancelling all of the dispositions of the first instance judgment and this case.

[Attachment-Related Acts and subordinate statutes omitted]

Judges Yan Jung-hun (Presiding Judge)