Whether the “act of operating a manufacturer of munitions” under the former part of Article 2 subparag. 14 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule, which constitutes a pro-Japanese act, should have made decisions on the management of the manufacturer of munitions or performed the principal role in the execution of duties (affirmative)

Article 2 subparag. 14 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (hereinafter “The Anti-National Corruption Act”), one of pro-Japanese and anti-national acts, refers to the operation of manufacturers of munitions in order to assist in the performance of war in the Japanese colonial rule, or the contribution of money and valuables in excess of the scale prescribed by the Presidential Decree.

However, interpreting pro-Japanese acts under each subparagraph of Article 2 of the Anti-National Corruption Act shall be strict in accordance with the language and text, and there is a need to prove considerable degree of proof therefor. The literal meaning of “operation” refers to the operation and management of organizations, organizations, and enterprises, and Article 14 of the same Act provides that the act in certain positions itself constitutes pro-Japanese acts, unlike subparagraphs 8 and 9 of the same Article, is subject to “operation of manufacturers of military supplies.”

In light of such circumstances, in order to constitute pro-Japanese and anti-national acts as “operation of munitions manufacturers” as referred to in the former part of subparagraph 14, it is insufficient to simply have served in a certain position in the munitions manufacturers, and it is interpreted that it was recognized that it was an act to the extent that it made a decision on the management of munitions manufacturers or performed a main role in performing duties in light of various materials.

Article 2 subparag. 14 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule

Plaintiff (Law Firm Rodd, Attorneys Lee Hong-hoon et al., Counsel for the plaintiff-appellant)

1. The term “the term “the term” means “the term” means “the term “the term” means “the term” means “the term” means “the term.

The Minister of Government Administration

Seoul High Court Decision 2011Nu3236 decided January 12, 2012

Of the part of the judgment below against the plaintiff, the part falling under Article 2 subparagraph 14 of the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule shall be reversed, and that part of the case shall be remanded to the Seoul High Court. The remaining appeals by the plaintiff and the defendant shall be dismissed.

1. As to the Plaintiff’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed)

A. As to the allegation in the grounds of appeal on Article 2 subparag. 13 of the Special Act to Finding the Truth of Anti-National Acts under the Japanese colonial Rule (hereinafter “ Anti-National Finding Act”).

(1) Article 2 of the Anti-National Corruption Act provides that “an act of anti-nationalism” shall be construed as “an act falling under any of the following subparagraphs committed from the beginning of the Japanese War to August 15, 1945 prior to the opening of the Japanese War,” and stipulates that “an act of anti-nationalism is listed in subparagraphs 1 through 20.” Of them, subparagraph 13 of the same Article provides that “an act of actively cooperating in the Japanese colonial rule and the war of aggression by actively leading the Japanese colonial rule by making a social and cultural institution or organization with a view to the decentralization of the Japanese colonial rule.”

(2) The lower court, on the grounds indicated in its reasoning, determined as follows.

Article 2 of the Anti-National Corruption Act lists the specific types of pro-Japanese acts. The meaning of the "act of actively cooperating in the Japanese colonial rule and the war against aggression", which is defined as the form of the act, is unclear, and considering the historical and political situation at the time, the scope of the act is likely to be excessively wide. Therefore, the above provision is limited to the subject or the form of the act. The decision of this case requires that the deceased or his lineal descendants, etc., who are the person subject to investigation, may infringe on the fundamental rights, such as personal rights. Thus, when interpreting pro-Japanese acts under the subparagraphs of the above provision, it shall be strict in accordance with the language and text, and the contents and method of the person subject to investigation shall be proved to the considerable extent.

According to the reasoning of the judgment on the facts as to the publication of the deceased Nonparty (hereinafter “the deceased”), the publication of the magazines’s “magazine” and the publication of the magazines’s editorials as well as the activities of the executives of the KCA and the KCA, it is reasonable to see that: (a) posting the literary items, etc. actively engaged in the Japanese colonial war and emphasizing the anti-Japanese body in the magazines’s operation; and (b) ordering our people to cite the Japanese colonial war and cooperate with the Japanese people in the physical aspects; and (c) taking into account the following as the main objective of the activities, it is reasonable to see that the act of actively cooperating with the major personnel of the party by participating in the KCA as promoters, and selling the claims for exhibition at the place of war, by actively cooperating with the Japanese colonial rule or Japanese colonial rule, through a cultural institution, organization, etc. in the Japanese colonial rule.

Although, as alleged by the Plaintiff, the deceased had continuously participated in the anti-Japanese movement and had contributed to the preservation, maintenance, and development of national culture through the Japanese colonial report, such circumstance or the evidence of this case alone does not reach the extent to deny the initiative and active nature of the anti-national act. Examining the circumstances in the holding on the meaning of the decision on anti-national act under anti-national law, including the purport of the Anti-National Geographical Act, as well as the meaning of the anti-National Geographical Act, it can be said that the deceased has made much efforts to maintain and develop the national self-esteem so that he would have made much much contribution to the historical evaluation that he would have become more respected than the truth. However, the decision that the above act of the deceased constitutes a type of anti-national act as defined in Article 2 subparag. 13 of the Anti-National Geographical Investigation Act is lawful.

(3) The ground of appeal disputing the fact-finding based on the above determination by the court below is merely an error of the judgment on the selection and probative value of evidence belonging to the free evaluation of the court of fact-finding. In addition, in light of the evidence duly admitted, the court below’s aforementioned determination is acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on pro-Japanese conduct and its standard under Article 2 subparag. 13 of the Anti-National Corruption Act, and contrary to the logical and empirical rules, exceeding the bounds of the principle of free evaluation of evidence against the law

B. As to the ground of appeal on Article 2 subparag. 14 of the Anti-National Corruption Act

(1) Article 2 Subparag. 14 of the Anti-National Corruption Act provides that one of the pro-Japanese acts is “the act of operating munitions manufacturers or of dedicatedizing money or goods exceeding the scale prescribed by the Presidential Decree in order to assist in the execution of war of the Japanese colonialism.”

However, as seen earlier, interpreting pro-Japanese acts under each subparagraph of the above provision ought to be strictly conducted in accordance with the language and text, and there is a need for proof of considerable amount of proof. The literal meaning of “operation” is to operate and operate organizations, organizations, and enterprises. Moreover, Subparag. 14 of the above provision is subject to “operation of military supplies manufacturers”, unlike subparagraphs 8 and 9 of the provision that regards the act in a certain position as an act constituting pro-Japanese act.

In light of such circumstances, in order to constitute pro-Japanese and anti-national acts as “operation of munitions manufacturers” as referred to in the former part of subparagraph 14, it is insufficient to simply have served in a certain position in the munitions manufacturers, and it is interpreted that it was recognized that it was an act to the extent that it made a decision on the management of munitions manufacturers or performed a main role in performing duties in light of various materials.

(2) The reasoning of the lower judgment reveals the following facts.

The Joseon Civil Aviation Industry Co., Ltd. (hereinafter referred to as the “Ship Industries”) was a company that was established by integrating the shipbuilding guard shop and the shipbuilding port public business place operated under the guidance of the Japanese Navy and the support of the authorities concerned with the Japanese General Shipbuilding, and was designated as the first-lane military company on December 8, 194.

On September 7, 1944, the shipbuilding aviation industry held a general meeting of promoters and held an inaugural general meeting on October 26, 194. The deceased, among 12 promoters, acquired 2,000,000 shares of the shipbuilding aviation industry as one of the 12 promoters, and participated directly in the general meeting of promoters and the inaugural general meeting of promoters.

The company was the president, the managing director (three persons), the employees (director, three persons), and the auditor (two persons), while the deceased was the auditor.

(3) According to the Commercial Code applied at the time, the auditor is a supervisory agency for the company's business and accounting, and is not an executing agency. Although the auditor can demand the company's business report or investigate the status of its business and property, and has the right to approve the company's business and the right to represent the company between the company and the company, and where a vacancy occurs between the company and the company, he/she may temporarily act on behalf of the company, this is based on the premise that the company is operating the company with the power of representation in all judicial or extrajudicial actions of the company. Therefore, in light of the legal principles as seen earlier, even if the deceased participated in the company as promoters of the shipbuilding Aviation Industry and was appointed as the auditor and was in possession of the power to supervise and check the company's business, it is not sufficient to deem that the company operated the shipbuilding Aviation Business solely on such circumstance, and there is no other data concerning other circumstances.

(4) Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the above deceased’s act constituted pro-Japanese and anti-national act as defined in Article 2 subparag. 14 of the Anti-National Corruption Act. Therefore, the lower court erred by misapprehending the legal doctrine on the operation of the manufacturer of munitions as stipulated in Article 2 subparag. 14 of the Anti-National Corruption Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting

2. As to the defendant's appeal

The appeal shall be dismissed pursuant to Article 429 of the Civil Procedure Act and Article 8(2) of the Administrative Litigation Act, when the appellate brief is not filed within the submission period provided for in Article 427 of the Civil Procedure Act.

According to the records, the defendant did not state the grounds for objection in the petition of appeal, and did not submit the statement of grounds for appeal within the submission period, and the statement of grounds for appeal was submitted only on March 8, 2012, which was after the deadline for submitting the statement of grounds for appeal. Thus, this constitutes grounds for appeal dismissed above.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff falling under Article 2 subparagraph 14 of the Anti-National Corruption Act is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiff and the defendant are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)