Plaintiff (Law Firm LLC, Attorneys Lee Han-han et al., Counsel for plaintiff-appellant)

Minister of Security and Public Administration

October 30, 2013

Seoul Administrative Court Decision 2009Guhap51025 decided December 23, 2010

1. The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to that part is dismissed.

2. All appeals filed by the Plaintiff are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On May 11, 2009, the Commission for Finding the Truth of Anti-National Acts (hereinafter referred to as the “instant Committee”) decided on May 11, 2009 as the pro-Japanese act of the deceased Non-party 1 (the counter-party 1) by the Presidential Committee for Finding the Truth of Anti-National Acts under the Japanese Rule of the Special Act on Finding the Truth of Anti-National Acts (hereinafter referred to as the “Special Act”).

2. Purport of appeal

A. The part of the judgment of the court of first instance against the plaintiff shall be revoked. The disposition that the committee of this case decided on May 11, 2009 as pro-Japanese act under Article 2 subparag. 17 and subparag. 19 of the Special Act shall be revoked.

(b) Defendant: as set forth in paragraph (1).

1. The part citing the judgment of the court of first instance

The reasoning of this court's judgment is that the part concerning plaintiff's assertion and its determination related to Article 2 subparagraph 7 of the Special Act among the judgment of the court of first instance (the 6th half to the 10th half, the 11th half to the 3rd below) are dismissed as follows, and the attached Acts and subordinate statutes are changed into the relevant Acts and subordinate statutes of this court at the end of this judgment. The corresponding part of the judgment of the court of first instance is cited in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act.

2. Whether pro-Japanese and anti-national acts under subparagraph 7 of Article 2 of the Special Act are performed.

A. The plaintiff's assertion

1) Article 2 subparag. 7 of the former Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule (amended by Act No. 11494, Oct. 22, 2012; hereinafter “former Act”). Article 2 subparag. 7 of the former Special Act on Finding the Truth of Anti-National Acts (amended by Act No. 11494, Oct. 22, 2012; hereinafter “instant provision of the amended Act”) was amended and deleted, and “the public interest of Japanese merger” was deleted. Under the main provision of the former Act at the time of disposition, where it is not recognized that a person was engaged in an act for Japanese merger and thus cannot be deemed as a pro-Japanese national act, the amended provision after the disposition cannot be deemed as a retroactive legislation contrary to the principle of statutory reservation, etc., and in light of the fact that the unfavorable result, such as compilation, etc. of feed pursuant to the main provision of the former Act cannot be deemed as a disposition under the main provision of the former Act.

2) (Subject to the application of the former main issues clause), Nonparty 1 (hereinafter referred to as the “Nonindicted Party”) did not receive the latter act on the ground that it was contributed to the merger from Japanese colonial rule, but merely received the latter act on the ground that it was a last-down relationship in the Yellow Room.

B. Determination

1) The main issue clause of the former Act stipulates that “an act of receiving or succeeding a commission through the meritorious conduct in the merger of Korea” was an act of pro-Japanese and anti-national behavior. However, the main issue clause stipulates that “an act of receiving or succeeding a commission from Japanese colonial rule” shall be excluded from “a person determined by the instant commission as a person, etc. who rejected, reflected, or actively participated in an independence movement after Japanese colonial rule.”

In light of the amendment process, the plaintiff revised the part of "the former Special Act on the Reversion of Property of Pro-Japanese Collaborators to the State (amended by Act No. 10646, May 19, 201; hereinafter "the former Special Act on Pro-Japanese Property") under Article 2 subparagraph 1 (a) of the former Special Act on the Reversion of Property of Pro-Japanese Collaborators to the Republic of Korea (amended by Act No. 10646, May 19, 201; hereinafter "the former Special Act on Pro-Japanese Property") to the effect that the interpretation of Article 2 subparagraph 1 (a) of the former Special Act on Pro-Japanese Property and Article 2 subparagraph 1 (a) of the former Special Act on the Acquisition of Pro-Japanese Property needs to be followed by time relation and causation between "the act of pro-Japanese merger" and "the act of receiving the work" under Article 2 subparagraph 1 (a) of the former Special Act on the Ownership of Property of the Republic of Korea.

2) In light of such provisions and the amendment process, the application of the key clause, as alleged by the Plaintiff, is deemed to contravene the principle of statutory reservation.

A) The Constitutional Court, like the issues clause, rendered a decision that Article 2 subparag. 1 (b) of the Special Act on Pro-Japanese Property, which deleted the part “in the form and expansion of a single-day group,” did not violate the Constitution on July 25, 2013 (see Constitutional Court en banc Decision 2012Hun-Ga1, Jul. 25, 2013). According to the summary of the decision, the Constitutional Court determined that the retroactive reversion of pro-Japanese property in the decision 2008Hun-Ba141 does not violate the principle of retroactive legislation prohibition. In the case of “the person who received or succeeded to the act from the Japanese class” under Article 2 subparag. 1 (b) of the Special Act on Pro-Japanese Property, as the symbolic existence of pro-Japanese group in itself, contributed to the formation and expansion of the Japanese class, and did not have any influence on the Japanese society at the time of the campaign to maintain and strengthen the Japanese class rule system, and thus, it cannot be deemed that the above act was not in violation of the principle of national trust or public interest.

B) Article 2 of the Addenda is deemed to have decided pursuant to the main clause of the instant case’s decision made pursuant to the former main clause. However, the application of the main clause after the disposition through Article 2 of the Addenda is difficult to be deemed to violate the principle of statutory reservation, the principle of prohibition of retroactive legislation, and the principle of protection of trust. The reasons are as follows.

(1) In the amendment of a law, the trust of the parties to the order of the former law is reasonable and reasonable, and the public interest purpose to achieve a new legislation is not justified because the party’s damage caused by the amendment of a law is extremely serious, the new legislation shall not be allowed in light of the principle of trust protection, etc. Provided, That the new legislation is inevitable to change flexibly due to the need following changes in social environment or economic conditions. Since there is an inevitable conflict between the new legal order and the existing legal order, all the expectations and trust of the citizen are not protected as constitutional rights, and the protection should be determined by weighing and balancing the public interest to be achieved through the need to protect the trust of the person who trusted the existing system and the new system (see, e.g., Constitutional Court en banc Decision 2005Hun-Ma222, Oct. 30, 2008). Meanwhile, the Constitution does not have a separate definition of the individual subject-matter law or individual case as a disposal law, nor does it constitute an individual subject-matter 1301 (see, 201).14).

(2) Article 2 of the Addenda to the former Act limits the Plaintiff’s trust that Nonparty 1’s act may not be a pro-Japanese act. However, as can be seen from the content of the provision, Article 2 of the Addenda to the former Act does not reach the extent of a disposal law. However, the fact that a decision made through an investigation pursuant to the former main provision is based on a decision made pursuant to the main provision, and that a new decision made without the provision under Article 2 of the Addenda to the same Act is difficult to guarantee the constitutional rights of interested parties, including those subject to the investigation. The key provision is to delete the part of the former main provision that “the public interest of merger” among the requirements of the former provision, and only the investigation conducted at the time of the previous decision can sufficiently confirm whether the requirements under the amended provision are met, and it appears that the procedural rights of interested parties are protected by the former provision through filing an objection, etc., and as seen earlier, it cannot be deemed that there is a serious violation of the Plaintiff’s unconstitutional provision or the Constitutional Court’s unconstitutional provision that prohibits the application of the amendment provision.

(3) Therefore, the application of the main sentence of Article 2 of the Addenda to the decision on the existing pro-Japanese act cannot be deemed as violating the principle of statutory reservation, the principle of prohibition of retroactive legislation, and the principle of protection of trust. The Plaintiff’s assertion in this part cannot be accepted.

3) The Plaintiff asserted that the disadvantage such as compilation of historical materials pursuant to the former main issue clause was not resolved. However, such circumstance alone does not necessarily mean that the disposition to apply the main issue clause is unlawful (in cases of relevant historical materials, it is only the extent that Nonparty 1 (the Nonparty 1) was committed by the act of “after the formation, the director, and the president of the Korean Bar Association”). This part of the Plaintiff’s assertion cannot be accepted.

4) The main clause shall apply to the decision made in accordance with the main clause of the former case. Accordingly, in the case of this case, it is recognized that Nonparty 1 (in the case of this case, Nonparty 1) committed the “act committed by the Japanese colonial act” as stipulated in the main clause, and thus, it constitutes pro-Japanese act under the main clause.

3. Conclusion

The instant disposition is all lawful. The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed. All appeals filed by the Plaintiff are dismissed.

[Attachment]

Judges Choi Jong-ho (Presiding Judge) Kim Tae-ho