[1] Whether acquisition by a situation through a land and forest survey project is included in the acquisition under Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State (affirmative)

[2] Where the latter part of Article 2 subparagraph 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State cannot be applied to the land acquired by pro-Japanese Acts through the circumstance, and in such a case, the burden of proving the relation between the acquisition of the relevant land and the pro-Japanese acts is borne

[1] As a matter of principle, the circumstance through the land and forest survey project begins with the report of the “owner” and thus, the land, forest survey and survey, the preparation of land, forest survey division and cadastral map and forest map after the fact-finding, and the procedure for public announcement and formal objection after the fact-finding, it cannot be denied that there was a confirmatory nature. However, at the same time, there was a lot of confusion about the ownership attribution as the time when modern legal relations began to be transplanted through Japanese colonial rule, and accordingly, there was no report of the owner due to various circumstances, or there was no owner or no owner, and land for which ownership attribution is unclear, and it was widely known that the land and forest survey project was used as a means to escape land by the pro-Japanese and/or anti-national actors who entrusted with it, and thus, it is merely a procedure to confirm the existing ownership of the relevant land and forest land under the title of the situation, and thus, it should not be deemed that the land and the forest land were acquired under the title of the land or the forest land under the title of the national title.

[2] In the case of land acquired by pro-Japanese and anti-national actors through circumstances, if it is recognized that there are considerable probability that the old legal relations or de facto ownership, which forms the basis of the situation, had already existed prior to the opening of the Rus and Japanese War, the latter part of Article 2 subparag. 2 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State (Presumption Clause) cannot be applied because the conviction of the judge as to the premise is no longer maintained, and in this case, the defendant must prove the compensation relationship between the acquisition of the land and the pro-Japanese act

[1] Article 2 subparag. 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State; Article 2 of the Special Act on the Finding the Truth of Anti-National Acts under the Japanese colonial Rule / [2] Article 2 subparag. 2 of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts to the State; Article 2 of the Special Act on the Finding the Truth of Anti-National Acts under the Japanese colonial Rule

[1] Supreme Court Decision 83Meu1152 delivered on January 24, 1984 (Gong1984, 366)

Plaintiff 1 and three others (Law Firm Civil, Attorneys Go Tae-tae et al., Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul High Court Decision 2008Nu33343 decided June 12, 2009

The part of the judgment of the court below concerning the decision on the reversion of pro-Japanese property to the Goyang-gu ( Address 1 omitted) forest land is reversed, and this part of the case is remanded to the Seoul High Court. The remaining appeals by the plaintiffs are all dismissed.

The grounds of appeal are examined.

1. Article 2 subparag. 1 (a) of the Special Act on the Reversion of Property of Pro-Japanese Collaborative Acts (hereinafter “the Act”) (hereinafter “instant definition provision”) defines a person who committed an act under Article 2 subparag. 6 through 9 of the Special Act on the Finding the Truth of Anti-National Acts under the Japanese colonial Rule as one of pro-Japanese actors, and the latter part of Article 2 subparag. 2 of the Act (hereinafter “instant presumption provision”) defines the person as one of pro-Japanese actors, and the latter part of Article 2 subparag. 2 of the Act (hereinafter “instant presumption provision”) is presumed to be the property acquired in return for pro-Japanese act from the opening of the Japanese War to August 15, 1945. The main sentence of Article 3(1) of the Act (hereinafter “instant attribution clause”) provides that such pro-Japanese property shall be owned by the State at the time of its acquisition, donation, etc.

As can be seen from the text of the Constitution declaring that “the Republic of Korea succeeds to the legal tradition of the provisional government of the Republic of Korea established by the third and one movement,” today’s Republic of Korea is built based on the contribution and sacrifice of the independent movement fighted against Japanese colonial rule, and furthermore, on the ideological foundation of the fact that the current Constitution is based on the spirit of the provisional government of the Republic of Korea aiming at the independence of the Korean nation, which has contributed to the Japanese colonial rule and promoted the independence of the Korean people, the Japanese colonial rule is based on the Japanese colonial rule. In the Japanese colonial rule, the judgment of the court below is just in its determination that the judgment of the court below is unconstitutional, as otherwise alleged in the grounds of appeal, by liquidation of erroneous past history, which had experienced as the consciousness of the Japanese colonial rule, such as identifying the fact that the Korean people were friendly, and recovering the property acquired in return for such kind of friendship, and thus, it cannot be deemed that there was a violation of the Constitution (see, e.g., Constitutional Court en banc Decision 2011Hun-Ba418).

A. First, the definition clause of this case can be sufficiently grasped through the structure and terms of the provision, and even if there is a certain degree of ambiguity, it can be sufficiently resolved by the systematic and harmonious understanding with other provisions or by the interpretation in accordance with the legislative purpose and purport of the enactment. If a person has a sound common sense and ordinary legal sentiment, it is difficult to predict the approximate meaning and scope of the provision of this case. Thus, the definition clause of this case cannot be deemed to violate the constitutional principle of clarity.

B. Next, as to the presumption clause in this case, the past liquidation work, including the reversion of a pro-Japanese property, takes place after a long period of time since the piracy, and it is extremely difficult for the State to prove that certain property is acquired in return for pro-Japanese cooperation due to the occurrence of many materials to prove the ownership of real estate due to the outbreak of Korean War, etc., on the other hand, it is extremely difficult for the State to prove that the purchaser of the property or its descendants are keeping the materials related to the acquisition of the property or are highly likely to know the details of the acquisition of the property most easily. In light of these circumstances, it cannot be deemed that the presumption clause in this case allows the purchaser of the property to prove the acquisition of the property. In light of these circumstances, it cannot be deemed that the scope or burden of the burden of proof that is transferred to pro-Japanese and anti-national actors, etc. through the presumption clause cannot be excessively excessive through the scope of the burden of proof or burden, and thus, the presumption clause in this case has a certain burden of proof shared to pro-Japanese and anti-national actors, etc.

C. Finally, as to the attribution clause of this case, although the attribution clause of this case constitutes a genuine class legislation, even if it is a genuine class legislation, it is exceptionally permitted in cases where the citizen could have anticipated retroactive legislation, or the reason for extremely serious public interest that takes precedence over the request for protection of trust is justified, etc. 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 and trust arising from the genuine class legislation, such as the instant attribution clause, is serious. However, it cannot be said that the constitutional request or public interest value of the legislative purpose to be achieved through this cannot be considerably high. Thus, the attribution clause of this case does not violate Article 13(2) of the Constitution solely on the ground that it is a genuine class legislation.

In addition, the attribution clause of this case also recognizes the appropriateness of the means in light of the fact that the legislative purpose of this case is not only justifiable, but also the method dependent on 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. It is limited to four cases where the subject of attribution is significant and scope as pro-Japanese's pro-Japanese act, and it is limited to the pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro-Japanese act's pro

In addition, since the ownership clause of this case does not belong to the state the property acquired by descendants of pro-Japanese and anti-national actors through their own economic activities or the inherited property other than pro-Japanese property, it cannot be deemed as contrary to the principle of prohibition of the annual system, and there is no room for the issue of the principle of prohibition against double Jeopardy with the ownership of property other than punishment

2. In addition, the circumstance through the land survey project and forest land survey project is, in principle, established by the “owner”’s report, and accordingly, it cannot be denied that the title holder of the land, forest survey and survey, the preparation of land, forest survey division and cadastral map and forest map after the assessment, and the procedure for public announcement and objection after the assessment. However, at the same time, the modern legal relationship began to be transplanted into the Republic of Korea through Japanese colonial rule, and there was a lot of confusion about the ownership attribution. Accordingly, the land and forest survey project were used as a means of land evasion by the Japanese or Japanese-national actors. Since it is widely known that the land and forest survey project were not reported by the owner due to various circumstances, or it was used as a means of land evasion by the Japanese-national actors, it is not merely a procedure of obtaining the existing ownership of the relevant land and forest, which is the circumstance, and since the system of acquiring the relevant land or forest by the modern land and forest survey system was also deemed to have been acquired through the modern land and forest survey system 184.

In the above purport, the judgment of the court below that the acquisition by the acquisition under Article 2 subparagraph 2 of the Act includes the acquisition by the acquisition is just, and it is not erroneous in the misapprehension of legal principles as to the scope of acquisition under Article 2 subparagraph 2 of the Act, as alleged in the grounds of appeal by the plaintiffs

3. Meanwhile, as the law delayed liquidation of the past history of the reversion of pro-Japanese property for a considerable period of time, it is very difficult for the State to prove what property it acquired in return for pro-Japanese cooperation due to the destruction of related materials, etc. while the purchaser of a property or its descendants relatively less know details of acquisition of the property and have related materials on the premise that it is highly probable that they have related materials. However, as the law was enacted and implemented at the time when the law was enacted and implemented at the time when a considerable period of time has already expired from the Japanese colonial rule, it is difficult to find that even if any property was acquired without pro-Japanese, it is obviously insufficient to hold objective materials to prove it, or because it was not possible to find it difficult to find it.

Therefore, in a case where the presumption clause is interpreted and applied solely solely through the form of a debate, it can be unconstitutional result that the law deprives of all property acquired by pro-Japanese and anti-national actors as pro-Japanese property regardless of its historical substance, regardless of its original legislative purpose. In particular, it cannot be excluded from the acquisition under Article 2 subparag. 2 of the Act for the aforementioned reasons. However, it cannot be denied that the acquisition under Article 2 subparag. 2 of the Act includes the confirming nature that the de facto ownership based on the old legal relationship before the implementation of the land and forest survey project is converted into the modern ownership. The presumption clause of this case also contains the presumption clause of land and forest survey project under the premise that it is possible to acquire the property of pro-Japanese and anti-national actors even before the establishment of the modern ownership system through the land and forest survey project. In light of the fact that the law is calculated from the commencement of the war and forest survey project prior to the implementation of the Korean War and the fact that the defendant had already acquired the ownership of the land in question before the acquisition of the land, if it is more probable that the defendant had already acquired the ownership.

According to the reasoning of the judgment of the court below (including the reasoning of the judgment of the court of first instance cited by the original trial) and the records, the plaintiffs, as pro-Japanese act of pro-Japanese, were assessed on February 10, 1914 and October 20, 1917 by Non-party 1, who is the plaintiffs' preference, but actually asserted that the non-party 2 or his preference, etc. acquired it before Non-party 1's death in 1764 and used it as a pro-Japanese for their descendants after the time of Non-party 2's death. According to the records of the 1853, Non-party 2, Non-party 2, Non-party 3, Non-party 26, Non-party 27, Non-party 27, Non-party 28, and Non-party 2, Non-party 2, non-party 25, non-party 268, non-party 25, non-party 27, and the rest of the grave of this case.

In addition, the above non-party 1's fleets or their siblingss are sufficient to preserve ownership in the name of the above clan 1 as to the land of this case, and it appears that the non-party 1 will continue to exist among the descendants of the non-party 2 at the time of the circumstances regarding the land of this case, and the above (name 1 omitted) and (name 2 omitted), which are adjacent to the forests of the above (name 1 omitted) and (name 18 non-party 9 and his descendants, the mid-time 3 omitted, and (name 4 omitted) the same ( Address 5 omitted), but the above ( Address 1 omitted) and ( Address 1 omitted) forest was not owned by the non-party 1 under the name of the above clan 1 as to the land of this case, and the fact that the non-party 1 was not owned by the non-party 1 under the name of the above clan 25 years old and the fact that the non-party 1 was not the ownership of the forest of this case before the above clan.

Nevertheless, the court below dismissed all of the claims of this case on the ground that the above ( Address 1 omitted) forest land including the above ( Address 1 omitted), was not proven by objective data to reverse the presumption of pro-Japanese property under the presumption provision of this case solely on the ground that the time of the circumstance was between the opening of the Russian War and August 15, 1945. Among them, there is no other circumstance to exclude or reverse the presumption as to the remaining land except the above ( Address 1 omitted) forest. However, the court below's decision as to the above ( Address 1 omitted) forest is acceptable, on the ground that there is an error of law by misunderstanding the legal principles on the interpretation and application of the presumption provision of this case, which affected the conclusion of the judgment by misapprehending the legal principles on the interpretation and application of the presumption provision of this case, or by failing to exhaust all necessary deliberation, and there is a justifiable ground within the limit of this part.

4. Therefore, of the judgment of the court below, the part concerning the decision on the reversion of the pro-Japanese property to the country of pro-Japanese forest in Gyeyang-gu ( Address 1 omitted) is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion, and the remaining appeals by the plaintiffs are all dismissed. It is so decided as per Disposition by the assent

Justices Kim Shin (Presiding Justice)