(영문) 서울고등법원 2013.10.16.선고 2012나31040 판결

2. Of the appeal costs, the part pertaining to the intervention by the supplementary intervenor is borne by the Intervenor (Appointed Party) and all of the remainder are borne by the Plaintiffs.

Purport of claim and appeal

The judgment of the first instance court shall be revoked. In the first instance court, the H Scholarship Association, a defendant foundation, is a corporation against the plaintiff A.

○ ○ 545 Preferred Shares 545, 3,198 Preferred Shares 3,198 Shares issued by ○ Preferred Shares :

As to the common shares 20,402 shares issued by OOO Broadcasting Co., Ltd., ○○ Co., Ltd.

91 Shares issued in registered common shares 91 shares, 000 shares issued in 000 shares, 533 shares issued in 000 shares

G. As to the 3,400 common shares issued by ○○○○ Broadcasting, Plaintiff C’s ○○ Broadcasting Co., Ltd.

common shares 364 shares, 2,132 shares issued by ○○ Daily Co., Ltd., ○○, ○○ Co., Ltd.

○○ Broadcasting 13 & 601 Shares 13 and 601 Shares ; Plaintiff D’s issuance of ○○ Broadcasting Corporation

Registered common shares 91 shares, 533 shares, OOO issued by ○○ Daily Co., Ltd.;

As to the 3,400 common shares issued by broadcasting, the Plaintiff E shall be deemed to have issued the OO broadcasting

common shares issued by 364 shares, 2, 132 shares, 00 ○○○○ Broadcasting Co., Ltd.

common shares 13 and 601 shares, with respect to the Plaintiff F, the registered common shares issued by ○○ Broadcasting Corporation

Note 364 shares, 2, 132 shares, 2, 30 shares issued by ○○○○ Broadcasting Co., Ltd.

shall comply with each procedure of stock transfer for 13,601 shares.

Preliminaryly, Defendant Korea’s KRW 107,93,00 for Plaintiff A, and KRW 17,98,00 for Plaintiff B;

Plaintiff C 71,957,00 won, Plaintiff D 17,988,00 won, Plaintiff E 71,957,000 won, Plaintiff F

71,957,00 won and each of the above amounts shall be repaid to the Corporation on the day after the day of service of the copy of the complaint in this case.

By the day on which 20% interest per annum is paid. (The plaintiffs shall be the preliminary defendant at the trial.)

For Korea, on the ground of default liability or tort liability, primaryly

As compensation for property damage, each of the above amounts shall be claimed, and if so, the determination of property damage shall be made.

If it is not possible, it shall be changed to seek payment of the above money as consolation money in the second place.

C) .

Reasons

1. Basic facts

A. On May 1943, 1943, the deceased Kim ○○○ (hereinafter referred to as "the deceased") was a company that established and operated a shipbuilding association, a Korean life company, and a Tran rubber corporation, etc. Around July 1949, ○○○ Daily Broadcasting Co., Ltd. (hereinafter referred to as "○○○○○○○○○") received and operated each of the OOOOOO broadcast (hereinafter referred to as "OOOO broadcast") around September 1959, and changed the ○○○○○○○ Broadcasting Co., Ltd. (hereinafter referred to as "OOOOOO broadcast") into a "OOO broadcast company (hereinafter referred to as "OOOOOO" corporation established by Japan, etc."). Around February 1961, the Korea Broadcasting Co., Ltd. (hereinafter referred to as "OOOOO corporation") changed into a "OOOO et al." broadcast.

2) On November 10, 1958, the Deceased established the ○○ Scholarship Association for the purpose of operating the scholarship business. At the time, there were ○○○○, a executive secretary of the ○○ Scholarship, a standing director, ○○○○, a director Kim○, ○○, a director Kim○, ○○○, and chi○○○○.

3) Around that time, the Deceased purchased 252 lots of land 100 and 147 square meters (hereinafter “each land of this case”) on the military unit site of ○○○○○○ Scholarship Association (hereinafter “the instant land”). At that time, ○○ Scholarship Association cannot complete the registration of ownership transfer on each land of this case under its name because it was not yet established as a juristic person, part of the deceased’s name could not complete the registration of ownership transfer under its own name, and part of the deceased had completed the registration of ownership transfer under the name of ○○○○, etc.

4) In addition, at the time of the establishment of the above ○○ Scholarship Association, the deceased held 20,000 shares of ○○○○ Card (100% of the shares issued), 20,00 shares of OO broadcast (10% of the shares issued), 13,10 shares of OOO broadcast (15% of the shares issued; hereinafter the above 3 media companies collectively referred to as '3 shares of this case', and each of the above shares was held in his name or borrowed person as stated in the status of holding shares of this case (attached Table).

B. On May 28, 1961, the so-called Military Revolution government established immediately after the Deceased’s each of the instant shares was announced on May 28, 1961 under the name of the deceased’s 5 and 16 military coupa and 15 companies such as ○○ (the founder of ○○ Group) and the deceased, etc. to investigate the facts of illegal decuption. During that process, the deceased was bound by the suspicion of illegal decuption, and was released on June 5, 196 after preparing and submitting a resolution of the return of property and a written indictment of suspension of indictment, and was finally paid on December 30, 300, 7500 shares and paid in cash.

2) After that, on March 27, 1962, the central information department ○○○○○○ and a full-time director of the scholarship council and eight officers and employees of the deceased, including ○○○○, ○○○, ○○, and ○○○, who are executive officers and employees of the deceased. On April 1 of the same year, the deceased’s wife, were detained on charges of violating the Customs Act. On the other hand, on the 24th of the same month, the head of the central information department ○○○ was arrested and detained on charges of various crimes, such as the violation of the Illegal Stock Handling Act, and the violation of the Foreign Exchange Control Act. On the other hand, the head of the ○○○, a wife, was released.

3) Upon receipt of the above case from the Central Information Department ○○○○○○ Branch, the military prosecutor brought a prosecution against the deceased on May 10, 1962 at the High Military Council in order to bring the case against the deceased for a crime of violation of the Customs Act, violation of the Local Property Doctrine Act, preparation of false public documents, and the event thereof (in response, violation of the Farmland Reform Act). The prosecutor brought the prosecution on May 24, 1962.

The deceased was sentenced to 7 years of imprisonment.

4) On May 25, 1962, the deceased, on the following day, affixed a “written waiver of the right to return each of the instant land and each of the instant shares to the State” presented by new ○○○, a legal adviser, the chairman of the National Council for Reconstruction (hereinafter referred to as the “Preferred Meeting”) who visited ○○○ Detention House. The Central Information Book transferred the said written waiver from new ○○○ to the Ministry of National Defense on May 28, 1962, and transferred all of the documents related to the said donation to the Ministry of National Defense on the 28th day of the same month.

5) On June 20, 1962, the deceased, in the office of ○ Martial Law Headquarters, affixed a seal on the “certificate of donation,” which is a document necessary for the registration of the transfer of ownership of the said donated land, and on the “written consent of donation, which is a document necessary for the registration of the transfer of ownership of the said donated land, and on the “written consent of donation” which is a document required for the transfer of ownership of the press third company shares. On the 22th of the same month, the prosecution of the military, on the ground that the deceased was divided into the crime and expressed that he would contribute to national re-defense, and the deceased was released by the High Military Council’s dismissal of prosecution on the said day.

On July 14, 1962, the 5-16 Scholarship Association (hereinafter referred to as the "5-16 Scholarship Association") has obtained permission for the establishment of each of the instant land and each of the instant stocks, etc. as fundamental property. On August 29, 1962, the registration of the transfer of ownership in the name of 5-16 Scholarship Association was completed with respect to each of the instant land on September 4, 1962, and the acquisition of shares was completed in the name of 5-16 Scholarship Association in the name of 5-16 Scholarship. The 5-16 Scholarship Association was changed on February 14, 1982.

D. Around November 2004, the Government's investigation by the Committee for the Promotion of the Truth of the State. Around November 2004, "the Government of the People's Republic of Korea" constituted "the Development Committee by ascertaining the truth of the National Intelligence Industry" (hereinafter "the Committee for the Development of the National Intelligence Service") and conducted an investigation to investigate the suspicions of suspicions that the deceased's ○○○ Scholarship Council, etc. was strongly unconstitutional by mobilization of national agencies, such as the National Information Department, under the so-called "The Committee for the Development of the National Intelligence Service" (hereinafter "the Committee for Development of the National Intelligence Service").

B) As a result, on July 22, 2005, the Committee for the Development of the NIS paid not only the three stocks of the press and each land of this case, which is the basic property of the ○○ Scholarship Council, under the condition that Park Jong-hee regime orders the Central Information Department to detain the deceased and is exempted from punishment, but also led in the process of land disposal among the property donated by the Central Information Center, and, in particular, even though the deceased's donated property should be managed and managed as a matter of course through the 5th and 16 scholarship conference, it has been managed as private property. "In order to find out the facts, and to relieve and restore the damage of the related persons, including the plaintiffs, it expressed its opinion that it is necessary to reform the Defendant H Scholarship Scholarship Association, which was operated as private property, as well as the 5th and 16th scholarship conference.

2) On January 27, 2006, Plaintiff C filed an application for the truth finding of the donation of each of the instant land and each of the instant shares with the National Authority (D - 9610 scholarship funds, etc.) by asserting that the donation of each of the instant shares was enforced by the State authority, with respect to each of the instant land and each of the instant shares, and filed an application for the truth finding of the fact finding of the fact.

B) On December 5, 2006, the former Bankruptcy Mediation Committee decided to initiate an investigation and conducted an investigation, and the 44th committee held on May 29, 2007 decided to ascertain the truth and make recommendations for the following purposes:

○○ The State Council for the Finding of Truth and the Central Information Division demand that the deceased, who was in a Gun Council, under a judgment of detention with the executives of the company, contribute to the State the shares of each of the instant land and the deceased’s possession of each of the instant land and the press to the State, and the receipt of the property is forced by public authority, and thus infringing the decision-making right and the property right.

○ Recommendations.

With respect to the investigation by the Central Information Department without the right to investigate the deceased, it is necessary for the State to take appropriate measures for restoring honor and compromise against the infringement of the property rights of the ○○ Scholarship Association and the property rights of the deceased, etc. caused by coercion by public authority. In the case of the unconstitutional land, the State shall return it to the ○○ Scholarship Association and compensate for the damages if it is difficult to return it. As ○○ Scholarship Association has already been disinned, it is necessary to establish and contribute an incorporated foundation for public interest.

If the shares paid in unconstitutionality are not restored to the State from Defendant H Scholarship Association, it is reasonable for the State to compensate the deceased’s surviving families for the loss. It is reasonable for the State to take appropriate measures such as rectifying the situation in which Defendant H Scholarship Association operates by a specific group or individual, and has utilized the shares held by the press organization as a means of financing the expenses of the Foundation.

C) On June 5, 2007, the past History Settlement Board served the Plaintiff C, an applicant, with a notice and a written decision that contain the contents of the determination to verify the truth, and the notice and written decision reached the Plaintiff C.

(e) Inheritance relationship;

On the other hand, upon the deceased's death on April 9, 1982, the deceased's wife and children, including the plaintiffs, inherited the deceased's property. The plaintiff A, a wife, and his children, succeeded to the deceased's property. The plaintiff A, a family heir, as the head of Song-gun, succeeded to the shares of 18/132, the plaintiff B, the plaintiff D (2 women), the Kim Jong-moo (3 women), the deceased's deceased Kim Jong-moo (4 women), the deceased's shares of 3/132, the shares of 13/132, the deceased C (2 South), the Kim○-moo (3nam), the plaintiff Kim○-moo (4m), the plaintiff F (5 South Korea), the defendant's Kim Il-moo (7nam), the deceased's shares of 12/132, the deceased's shares of 132/196, the deceased's shares of 13/192, the deceased's shares of 1300.

【No dispute over recognized evidence】 Each entry in Gap's evidence Nos. 1, 2, 6 and Eul's evidence Nos. 24, 34, 35, 37, 38, 43, 46, 69, 75, 126 through 132, and 157 (including branch numbers; hereinafter the same shall apply), the plaintiff's results of the plaintiff's newspaper, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion 1) revealed that the deceased consistently donated each of the shares of this case under the strong pressure of the State through the writing stating that the deceased's writing writing, the statement of the preparation of the year 1971, and the resume b of the year 1976. The signature and seal of the letter of consent to each of the shares of this case appears to have been manipulated, and the date of the preparation of the letter of consent to the donation was changed from June 20, 1960 to June 30, 1962, "after the deceased was released," the deceased's expression of intent to each of the shares of this case can be deemed to have been made in a situation where the freedom of decision was completely deprived.

2) The expression of intent to donate each of the shares of this case should be interpreted to be widely applied to unfair legal acts in light of the principles of justice and equity, rather than to interpret only when there is an obvious imbalance between payment and benefit in return. In light of the motive, circumstance, and content of each of the shares of this case, it seems that the expression of intent to grant each of the shares of this case constitutes an unfair legal act that is clearly contrary to the principles of justice and equity in light of the following: (a) conditions attached to a juristic act, which is subject to restraint and punishment of the deceased; or (b) the motive for the juristic act indicated or known to the other party is contrary to the social order; and (c) the motive for the juristic act is contrary to the social order; and (b) a juristic act that substantially loses fairness as stipulated in Article 104 of the Civil Act is null and void; and (c) a juristic act is deemed null and void as the expression of intent to grant shares of this case as to each of the shares of this case.

4) Even if it is deemed that the expression of intent of donation of each of the shares of this case was merely an act that may be revoked under Article 110(1) of the Civil Act, the exercise of the right to revocation was impossible within the governing period of Park Jong-hee. Thus, the exclusion period of the right to revocation shall begin on October 26, 1979 when Park Jong-hee died. The Deceased sent a written claim for the return of each of the shares of this case to 5/16 scholarship around April 1980, which was 1980 after Park Jong-hee’s death. Accordingly, the claim for return of each of the shares of this case against the deceased about 5/16 scholarship around April 1980, which was 3 years from the initial date of the exclusion period, becomes effective as the revocation of the declaration of intent by coercion. Even if so, the cancellation period is not so, the cancellation date of the right to revocation may be revoked or confirmed by the committee as the declaration of intent by coercion.

4. On June 2, 2010, the deceased's heir is served with the truth finding and recommendation. Accordingly, the plaintiffs, as the heir of the deceased, can primarily seek the implementation of the procedure for transfer of each of the shares of this case against the defendant H Scholarship Association for the restoration of real name as the owner of each of the shares of this case. Since the shares of this case differ depending on the change in the issuance of three copies of the press, the plaintiff, as the representative of the entire heir, can seek compensation for damages equivalent to the shares of this case from the above ○○ Broadcasting Co., Ltd., 23,450 shares of this case, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 616 shares, to pay damages from each of the plaintiffs' respective shares of this case to the defendant H by enforcing the above procedure for transfer of shares of this case.

B. Defendant HH Scholarship 1) first proposed that the deceased would donate his own property. At the time of donation of each of the shares of this case, the deceased affixed a written consent of donation, etc. at the free atmosphere. At the time of the establishment of the May 16 Scholarship Association, the Government considered whether the deceased would accept the proposal of donation by the deceased. There was no reason to block the evasion of the law by which the government, which was legally able to collect funds or profits from other methods necessary for the establishment of the Scholarship Association, forced the deceased’s property to be deducted by other means. The deceased recognized that the donation of each of the shares of this case was based on his own will. The deceased, as the deceased, was able to receive property value without property value under the pretext of returning to the society, and the deceased was able to receive the government’s preferential measures from overseas loans, banks loans, etc. after the donation of property.

In full view of these points, the deceased is merely a donation of each of the instant shares to the State according to his own judgment for the purpose of seeking the government’s preference under the social atmosphere that the deceased should recover the property of an illegal donor, and it is not a forced donation in the situation of deprivation of the freedom of decision-making, as alleged by the Plaintiff.

2) Even if the State had threatened the Deceased, its family members, officers, and employees, etc. with certain harm, such threat is merely an unlawful method used in the process of obtaining the declaration of intent of gift as a means of coercion. As seen earlier, such expression of intent does not involve any unlawful condition or monetary consideration, and it does not lead to any consequence contrary to the social order by forcing the declaration of intent of gift by law, and it does not constitute a case where the motive of donation of each of the instant shares is contrary to the social order. Thus, there is no room to deem that the deceased’s act of donation goes against the social order.

3) In order to become an unfair legal act as referred to in Article 104 of the Civil Act, there is a significant imbalance between benefits and consideration. Accordingly, in the case of each of the instant shares donation, it cannot be an unfair legal act because it constitutes a gratuitous act. In addition, since the State does not necessarily assume the obligation to cancel detention or to cancel public prosecution for the donation of each of the instant shares, the donation of each of the instant shares cannot be deemed as an onerous donation. Furthermore, the Plaintiffs, while each of the instant shares is the Defendant H Scholarship Association, as the recipient of each of the instant shares was the Defendant H Scholarship Association, and the Plaintiff’s donation was made in full with the charge that the Republic of Korea received the Defendant’s donation. (iv) Since each of the instant shares was not affected by the State’s declaration of intention by coercion, the Plaintiffs cannot be deemed to have cancelled the rights of donation of each of the instant shares as a mere act of revocation of the Plaintiff’s exercise of rights against the Plaintiff’s heir’s 16th of the instant shares. Furthermore, even if each of the instant shares was originally subject to the State’s cancellation of the rights against the Plaintiff’s 16th.

5) The other party to whom the deceased donated each of the shares of this case is the defendant Republic of Korea, and even if the defendant HH Scholarship revokes the donation of each of the shares of this case, it is merely a third party acting in good faith who received a re-contribution from the defendant Republic of Korea, the validity of the donation of each of the shares of this case shall not be affected by the defendant HH Scholarship Association). The deceased obtained information from the Kim Jong-won at the time of July 1971 that the 5th and 16 scholarship association would sell the 000 daily newsletter and the 000 broadcast due to business difficulties, and then it can be recognized that the president of the above HH Scholarship expressed his intention to purchase the 000 daily newsletter and the 0000 broadcast. Such expression of intention of the deceased is premised on the validity of the donation of each of the shares of this case. Thus, it can be deemed that the right to cancel the donation was extinguished.

C. Defendant Republic of Korea’s assertion 1) The parties to the donation contract for each of the shares of this case are the deceased and the 5/16 scholarship association. Accordingly, the Plaintiffs’ assertion premiseding the parties to the donation contract for each of the shares of this case as Defendant Republic of Korea is without merit. Even if Defendant Republic of Korea is a party to the donation contract for each of the shares of this case, public officials belonging to Defendant Republic of Korea did not act of unlawful coercion, such as assault, intimidation, coercion, etc. in the process of the donation of each of the shares of this case. 2) In addition, the exercise of illegal public power, such

Even if there is a reason that the reason is merely an illegal method of coercion in the process of establishing the gift of each of the instant shares, it cannot be deemed null and void on the ground that it is an act of anti-social order.

3) The grounds for the plaintiffs’ assertion alone cannot be readily concluded that the deceased expressed his/her intent of gift to each of the instant shares in a state that he/she completely deducteds the freedom of decision-making. 4) Without a quid pro quo relationship, a gift agreement in which one of the parties gives a unilateral benefit to the other party is not a legal act that may discuss whether the agreement is fair

5) Since the Deceased ratified the gift of each of the instant shares before around 1980, there was no subsequent declaration of intent to revoke it. Moreover, since the 10-year limitation period has already elapsed from the time of conclusion of the donation contract for each of the instant shares, the right to revoke the right to revoke was extinguished. 6) Not only did the State’s illegal coercion against the Deceased, but also even if the existence of a family exists, the statute of limitations has expired.

3. Party to the donation contract of this case

A. The issue is raised

The plaintiffs and the defendant Republic of Korea asserted that the deceased donated each of the shares of this case to the defendant H Scholarship Association (the defendant Republic of Korea denies the fact that there was a strong pressure, and even if there was strong pressure, the other party to the donation of each of the shares of this case claims that the defendant H Scholarship Association was the defendant H Scholarship Association). The defendant H Scholarship Association claims that the deceased would have again contributed the property that the deceased donated to the defendant Republic of Korea to the defendant, and that the defendant H Scholarship Scholarship Association would have been contributed again. The requirements for cancellation of the contract and the other party to the declaration of intent to cancel the contract may have different effects depending on whom the contracting party would be the party, so it is necessary to

(b) Markets:

In full view of the evidence as mentioned above and the purport of the argument in the statement No. 8, the donee is recorded in the above written consent of donation each of the shares of this case, which is the direct basis for the 5.16 scholarship conference's fundamental property. The deceased does not transfer each of the shares of this case to the defendant Republic of Korea in the form of donation prescribed in the State Property Act, but the transfer procedure for the transfer of shares was made in the name of 5.16 scholarship association from the deceased or his nominal borrower. On June 5, 1962, "The first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half of the first half the first half of the first half of the first half of the first half of the first half the first half of the first half of the first half of the first half the first half of the first half of the first half of the first half of the first half the first half of the first half of the first half.

However, each evidence mentioned above, Gap evidence Nos. 4, Eul evidence Nos. 7, 67, 78, 95, and Eul evidence Nos. 112-5, and the following circumstances acknowledged by considering the overall purport of the pleadings, namely, ① New ○○, a legal adviser of the highest conference, prepared and submitted a written waiver of the contents that he/she donated each of the shares of this case and each of the lands of this case to the State from the deceased, and ○○ was the Minister of Justice at the time when he/she visited the Law Office of ○○○, upon receiving from Park Jong-hee’s instruction from the deceased, and then donated the deceased to the Government of the Revolution, and was instructed to make the 5 and 16 Scholarship Foundation with an instruction to make the deceased’s 5 and 16 scholarship, so it was necessary to submit a written consent in advance to the deceased, and signed and sealed the above documents in the name of the deceased, including the remaining shares of the deceased, but not in the name of the third shareholder.

날인한 것으로 보이는 점, ② 그 무렵 작성된 이 사건 각 주식에 관한 기부승낙서 ( 총 26매, 을가 제157호증의 1 내지 26 ) 는 망인측 인사가 아닌 5 · 16장학회 설립을 추진하던 실무자가 위 각 기부승낙서에 주식 수, 주소, 성명 등의 공란을 임의로 채워 넣은 후 도장을 날인하고, 수증자란을 " 財團法人五 · 一六獎學會 " 라고 보충한 것으로 보이는 점, ③ 5 · 16 장학회의 설립을 위해 서울시 교육국에 제출된 기부승낙서에는 작성일이 1962. 6. 30. 로 기재되어 있으나, 이는 원래 일자란에 기재되어 있던 " 二十 " 에 누군가가 " ㅡ " 을 가필하여 사후에 수정된 것인바, 위와 같은 수정이 이루어진 이유는 기부시점을 망인이 석방된 1962. 6. 22. 이후의 시점으로 하여 재단법인 5 · 16장학회 설립허가신청 시점인 1962. 7. 11. 에 맞추기 위한 것으로 보이는 점, ④ 망인이 이 사건 각 주식을 증여하기로 결정한 1962. 5. 25. 또는 1962. 6. 20. 당시에는 아직 5 · 16 장학회가 설립조차 되어 있지 않은 상태였고, 5 · 16장학회가 설립된 시점은 그보다 후인 1962. 7. 14. 인 점, ⑤ 망인은 중앙정보부 ○○지부에 의하여 자신과 회사의 주요 임 · 직원들이 구속되어 재판을 받는 과정에서 자신과 회사 임직원들의 안위 및 향후 정상적인 기업경영을 위하여 군사혁명정부에서 요구하는 대로 이 사건 각 주식에 대한 헌납에 동의하여 위 기부승낙서에 서명 · 날인하여 준 것이고, 그 이후에 이 사건 각 주식을 기본재산으로 하여 5 · 16장학회를 설립한다는 것은 군사혁명정부의 주도로 이루어진 것일 뿐이며, 그 과정에 망인이 관여한 바가 전혀 없었던 점 등을 종합하여 볼 때, 위 기부승낙서는 망인이 군사혁명정부에 이 사건 각 주식을 헌납한 후 군사혁명정부 측으로부터 이 사건 각 주식의 활용 방안 마련을 위하여 필요한 서류가 있다는 요구를 받고 수증자란이 공란인 위 기부승낙서에 서명 · 날인하여 준 것이고, 이후에 수증자란은 군사혁명정부 측 인사가 임의로 보충한 것일 뿐 망인이 5 · 16장학회에 이 사건 각 주식을 출연한다는 의사로 서면을 작성하여 준 것은 아니어서 망인은 이 사건 각 주식을 국가에 증여하였다 할 것이고, 이를 증여받은 국가가 증여자의 의사와는 무관하게 자신의 의사결정에 따라 이 사건 각 주식 등을 기본재산으로 하여 5 · 16장학회를 설립한 것이므로 이 사건 각 주식에 대한 증여의 상대방은 피고 대한민국이라고 할 것이다 .

4. Determination as to the claim against the principal defendant H Scholarship Association

A. Legal principles as to the donation of each of the instant shares is null and void by duress

In order to invalidate a juristic act as a defective declaration of intent, it is not sufficient to have a mere threat of harm and injury to the deceased, but to the extent that such declaration of intent was made only by external appearance of a juristic act under the circumstances where the deceased was completely deprived of his/her own decision-making. (See Supreme Court Decisions 2002Da73708, 73715, May 13, 2003; 202Da56031, December 10, 2002, etc.) The government’s declaration of harm and injury to the deceased’s property by taking into account the following circumstances: (a) whether there was a threat of harm and injury on the part of the deceased’s officers and employees under the Military Act, and the degree of coercion; and (b) whether there was a threat of harm and injury to the deceased’s property at the time of this case’s de facto declaration of intention by force; and (c) whether there were any unlawful fear of harm and injury to the deceased’s property by coercion or abuse of legal order.

(3) In two weeks after the institution of public prosecution, the military court’s judgment was concluded, and seven-year imprisonment was sentenced to the Deceased, and the company’s other officers and employees were punished by imprisonment for two to five years. Under these circumstances, ○○○○○○○○, the motive of the president of the Supreme Court of Park Jong-hee, the deceased and the president of the Supreme Court of Park Jong-hee, specifically pointed out three copies of the press as property donation title on the deceased’s side, and the need to establish a public interest foundation was stated. Accordingly, the deceased’s donation of each of the above shares appears to have been inevitable to contribute to the State in order to gather heavy criminal punishment. Since it is difficult for the deceased to (4) the deceased, who visited the ○○ detention center following the date of the court of public trial, was unable to pay the shares of this case to new ○○ who is the chairman of the Supreme Court of Justice, who was a legal advisor of the Supreme Court of Justice to return each of the instant land and each of the instant shares to the National Assembly, and then the Central Council of this case’s consent was issued to each of this case and each of this case.

(6) On July 1962, 1962, after being detained in the Central Information Department as above, the deceased studies the return plan by recognizing the fact that he took her property by force and researching the return plan. The deceased argued to the effect that he/she made a gift of each of the shares of this case by the national pressure continuously through the rupture of the State through the 1962 metromos prepared on June 4, 1962, the 1971 note prepared in the 1976 note, and the curriculum vitae described in the 1976 note.

C) However, in full view of the following circumstances acknowledged as a whole based on the purport of the entire arguments, namely, even if the deceased is detained as above, interview with his wife was freely permitted without binding on locks or ropes, and special treatment was received in the ○○ prison ward room, and the executives and employees of the company detained together at the time were involved in the Central Information Department ○○○○○ Branch and did not have any adviser or cruel act at the time of investigation. As seen earlier, each of the instant shares donation by the deceased was due to coercion by the State as seen earlier, and it is difficult to deem that the deceased’s act of donation was due to coercion by the State as seen earlier, and thus, it was defective in its expression of intent. Furthermore, it is difficult to view that the deceased’s expression of intent was made in a state where it was completely deprived of the deceased’s decision making due to coercion, and there is no other evidence to prove otherwise.

3) Therefore, the Plaintiffs’ assertion that the gift of each of the instant shares is null and void due to coercion is without merit.

B. The relevant legal principles on the assertion that a juristic act in anti-social order is null and void

An act of anti-social order null and void under Article 103 of the Civil Act includes not only cases where the contents of rights and obligations, which are the object of a juristic act, violate good morals and other social order, but also cases where the content itself legally enforces it, or has the nature of social order because it is connected with social order conditions or monetary consideration, and cases where the motive of the juristic act indicated or known to the other party is anti-social order. However, if the illegal method of coercion in the process of establishing a juristic act is used without any requirement above, it can be discussed as a juristic act against social order on the ground that the defect of declaration of intention or defects of intention by coercion is not effective (see, e.g., Supreme Court Decisions 92Da719, Nov. 27, 1992; 200Da47361, Dec. 28, 2002).

2) There is no evidence to acknowledge that the application of the instant case was made under the condition that the donation of each of the instant shares would be exempted from arrest and punishment of the deceased, or was made in connection with the exercise of the State’s penal authority, or that the motive of the legal act indicated or known to the other party is anti-social order. Rather, as seen earlier, the threat of the State’s confinement of the deceased, their family members, and executives and employees, etc., to a certain degree of harm to the body or property is merely the use of unlawful methods in the process of receiving the declaration of intent of donation of each of the instant shares as a means of coercion. It is not deemed that the expression of intent of donation of each of the instant shares was an unlawful condition or monetary consideration in the process of receiving the declaration of intent of donation of each of the instant shares. Therefore

C. 1) The legal act, which has considerably lost fairness as stipulated in Article 104 of the Civil Act, refers to an act of obtaining unfair economic benefits by causing the deceased to benefit in return for his own benefit. Thus, a legal act, without any consideration like a donation contract, which one of the parties gives a unilateral benefit to the other party, is not a juristic act of a nature that can discuss whether it is fair (see Supreme Court Decision 93Da6409, Oct. 26, 1993, etc.). Meanwhile, in the case of onerous donation, the provisions on bilateral contract are applied, but only under the circumstances cited by the plaintiffs, it is difficult to recognize that the Republic of Korea has a burden that the defendant's Republic of Korea should comply with the basic principles of criminal justice, which clearly infringes upon the rights and interests of the State as well as the basic principles of criminal justice.

Therefore, it is reasonable to see that the plaintiffs' assertion on this part is without merit, which is based on the premise that the donation of each of the shares in this case is an onerous donation.

(d) the occurrence of right to revoke a declaration of intention by duress 1)

According to the above facts of recognition, the above declaration of intention of the deceased was made by the coercion on the part of the defendant's Republic of Korea. Thus, the deceased and the plaintiffs, who are their successors, may cancel the declaration of intention of the gift of this case on the ground of this.

In addition, even if one or both of the parties of a juristic act which may be revoked differently from the exercise of the right of rescission or termination, there is no legal limitation that all of the parties must have against all of the parties, so the revocation of the declaration of intention of donation of each of the shares of this case by some of the inheritors of the deceased is valid.

Furthermore, even if the act of donation of each of the instant shares was made by coercion, it is the members of the Defendant Republic of Korea, such as the Central Information Department, and since the 5-16 Scholarship Association was not involved in it, it is alleged that the 5-16 Scholarship Association constituted a third party in good faith under Article 110(3) of the Civil Act. However, in full view of the following circumstances acknowledged in full view of the overall purport of the arguments, namely, the 5-16 Scholarship Association was led to the establishment of the 5-16 Scholarship Association at the time when the deceased was detained, and the 5-16 Scholarship Association was not an incorporated foundation established, but an organization formed to utilize each of the instant shares and each of the instant shares after the deceased’s donation of each of the instant shares, the 5-16 Scholarship Association appears to have known, or sufficiently known, that the donation of each of the instant shares was made based on the coercion by the Defendant Republic of Korea’s constituent members. Thus, Defendant H Scholarship’s expression of intent is without merit.

2) The right of revocation shall be exercised within three years from the date of ratification, and within ten years from the date of the juristic act (Article 146 of the Civil Act). The right of revocation against expression of intent by duress is a kind of right of creation, and the period of limitation should be the date when the right of revocation can be ratified. In this case, "the date when the right of revocation can be ratified" means the time when the right of revocation can be ratified and can be cancelled because there is no obstacle to the exercise of the right of revocation as the cause of revocation terminates.

On the other hand, in case where the other party to a voidable juristic act becomes final and conclusive, the revocation shall be made by declaring intention to the other party (Article 142 of the Civil Code), and even if the other party expresses his intention to revoke, the revocation shall not take effect.

B) The point at which the deceased, the deceased, or the plaintiffs asserted that they revoked the donation of each of the shares of this case is apparent in the water as of June 20, 1962, and there is no evidence to deem that the deceased revoked the donation of this case until the lapse of 10 years from June 20, 1962, since the time when 10 years passed since the donation of each of the shares of this case was made by the deceased, the right to revoke the donation of this case is already extinguished.

C) As to this, the Plaintiffs’ exclusion period of the right to revoke shall be October 1979 where Park Jong-hee died.

26. or from the date of being served with the truth-finding and the recommendations by the previous Regulatory Commission. Since there was a legitimate exercise of the right of revocation within three years from the initial date of each of the above, the right of revocation has not been extinguished. The assertion that the limitation period has expired is against the principle of good faith and it constitutes abuse of rights.

However, unlike the extinctive prescription system that recognizes the interruption or suspension of extinctive prescription under Article 146 of the Civil Act, the legislative purpose of the system is to ensure stability in the legal status of the other party and transaction parties by promptly and uniformly establishing the legal relationship with the lapse of a certain period. In light of the above, the assertion that the exercise of the right by the plaintiffs cannot be allowed after the lapse of the exclusion period does not violate the principle of good faith or the principle of prohibition of abuse of rights.

E. Sub-committee

Therefore, the plaintiffs' primary defendant H Scholarship Foundation's above assertion is without merit.

5. Determination on the claim against the conjunctive defendant in Korea

A. Determination as to liability for nonperformance of duty to return shares

1) The Plaintiffs asserts that Defendant Republic of Korea is obligated to recover each of the instant shares from Defendant H Scholarship Association and return them to the Plaintiffs, and that Defendant Republic of Korea is liable for damages due to nonperformance if it fails to comply with such obligation.

2) As seen earlier, the deceased’s declaration of intent to donate each of the shares of this case to the Defendant Republic of Korea due to the Defendant’s act of coercion on the part of the Defendant Republic of Korea was made. However, the argument that such indication of intent of donation becomes invalid or cancelled cannot be accepted. It is so decided as to the primary Defendant H Scholarship Association.

Therefore, the above assertion by the plaintiffs on the premise that the defendant Republic of Korea has a duty to return each of the shares of this case to the plaintiffs due to the invalidity of the act of donation of each of the shares of this case is without merit.

B. Determination on tort liability

1) Whether liability has been established

As seen earlier, Defendant Republic of Korea had donated each of the shares of this case to the public of the Defendant due to Defendant Republic of Korea’s coercion. Accordingly, Defendant Republic of Korea is liable for damages equivalent to the Plaintiffs’ inheritance share ratio to some of the inheritors of the deceased, barring special circumstances, to compensate the Plaintiffs for damages equivalent to the respective shares of this case. 2) As to this, Defendant Republic of Korea had already passed the extinctive prescription period from the time when the said tort had already been committed, the damage claim based on the said tort had expired.

I asserts that this case is.

B) The claim for damages caused by tort is extinguished by the statute of limitations, unless it is exercised within three years from the date on which the person was aware of the damage and the perpetrator (Article 766(1) of the Civil Act); however, it is reasonable to deem that the victim, etc. who received the truth-finding decision from the Appellate Committee, barring any special circumstance, knew of the damage and the perpetrator at the time of the truth-finding decision (see Supreme Court Decision 2012Da4091, Apr. 26, 2012). The short-term statute of limitations shall expire three years from the date of tort. Meanwhile, the claim for damages against the State caused by tort shall expire if it is not exercised within five years from the date of tort (Article 71 of the former Budget and Accounts Act (amended by Act No. 8050, Oct. 4, 2006). This is the fact that the statute of limitations has run from the date of the above three-year short-term statute of limitations, and thus, it is forced by the State to confirm the victim’s damage.

C) As to the instant case, it is apparent that the deceased donated each of the instant shares on May 25, 1962 or June 20, 1962 by the Defendant Republic of Korea’s tort, and the deceased was released on June 22, 1962 after the dismissal of prosecution was made on June 22, 1962. As seen above, the Defendant Republic of Korea’s defense against the Defendant Republic of Korea is reasonable, since it is apparent that five years have elapsed from the date of release of the deceased, who was the end of the Defendant Republic of Korea’s tort at the time of the instant lawsuit, was against the principle of good faith.

The plaintiffs re-arguing that the defendant Republic of Korea asserts the expiration of extinctive prescription violates the principle of good faith, and re-arguing that it constitutes abuse of rights.

B) Whether the statute of limitations defense constitutes abuse of rights

The exercise of the right of defense on the ground of extinctive prescription is governed by the principle of good faith and prohibition of abuse of rights, which are the major principle of the civil law, and thus, the obligor has shown the same attitude that the obligor would not invoke the prescription after the completion of extinctive prescription. The right holder exercised his/her right within a reasonable period for which he/she could expect the exercise of the right

The obligor’s assertion of the completion of extinctive prescription is not permissible as an abuse of right against the principle of good faith (see Supreme Court Decision 2009Da66969 decided September 8, 201, etc.).

As seen earlier, the Defendant Republic of Korea enacted the Act on the Settlement of History (Act No. 7542, May 31, 2005) on May 31, 2005, which was about 40 years after the lapse of the five-year statute of limitations, and accordingly, had engaged in activities to ascertain the truth, upon application of the victims or ex officio, after forming the committee for the settlement of past history, and made efforts to recover the damage and honor of the victims of the case to ascertain the truth through the Act on the Settlement of History, and shall take necessary measures for the settlement and integration of the people, and shall take appropriate measures to recover the damage and reputation of the victims, victims, and bereaved families based on the discovered truth.

As such, the Act on the Settlement of History, including the act of destroying the constitutional order from August 15, 1945 to the control of the authoritative authority, expressly stating that it was enacted for the purpose of restoring victims’ honor by simply identifying the truth of historical facts regarding the entire subject matter of application, including the death, injury, disappearance, and other serious infringement of human rights and suspicion of manipulation, rather than merely correcting distorted or misunderstandings and promoting the restoration of victims’ honor.

As can be seen, in a case where the Act declares the recovery of damage to an individual victim caused by a specific historical incident in the past, it is desirable for the Government or the National Assembly to establish specific measures, such as setting the subject or criteria for the recovery of damage through subsequent legislation, etc. In such a case, the recovery of damage caused by monetary payment means only a package resolution through legislative measures, etc., and it is limited to a case where the Act provides for the purport that the individual victim would be excluded from claiming damages through judicial procedures. Ultimately, unless there are any restrictions on the implementation method, the State declares that the historical facts prior to several hundreds of years are re-exploited through the enactment of the Act on the Settlement of History in the past and declares that the victim and his/her bereaved family members would withdraw the measures to recover damage, but the State declares that the victim would ultimately accept the judicial relief method seeking damages through the method of the State compensation, barring any special circumstance, and the legal meaning derived therefrom would have expressed its intent not to refuse compensation by asserting the extinctive prescription in a specific litigation case.

As to the instant case, there was a request for a truth-finding under the Act on the Settlement of History for the Deceased, and the Committee for the Settlement of History under the Defendant’s Republic of Korea also donated the property to the State by force of the State’s public authority. As such, the State made a truth-finding decision to the effect that the State should restore the property to its original state to its original state, as seen earlier.

Therefore, it is reasonable to view that there is a special circumstance to consider that the defendant Republic of Korea has a trust to the effect that when exercising the right within a considerable period of time based on the decision, the defendant Republic would not claim the extinction of right by the completion of extinctive prescription. Nevertheless, the defendant Republic of Korea's assertion of the completion of extinctive prescription against the plaintiffs constitutes an abuse of rights against the principle of good faith and thus it is not permissible.

Meanwhile, even in cases where an obligor granted the same trust that he/she would not invoke the benefit of extinctive prescription, an obligee may avoid defense of extinctive prescription of an obligor only if he/she exercises his/her rights within a reasonable period from the time when such circumstance occurred. Here, whether an obligee exercised his/her rights within a reasonable period of time is obliged to prevent the obligee from exercising his/her rights. The relationship between the obligee and the obligor, the details, motive and circumstance of the obligor’s act given trust, the purpose and genuine intent of the obligor’s act that the obligor intended to achieve

It will be determined by comprehensively taking into account whether there was any circumstance.

However, denying the validity of the statute of limitations on the ground of the principle of trust and good faith should be limited to an exceptional limitation on the system of the statute of limitations, which takes the ideology of legal stability, remedy for difficulties in proving evidence, and sanction against negligence in exercising the right. Thus, a reasonable period of time should be limited to a short period of time as to the interruption of prescription under the Civil Act, barring any special circumstance. Therefore, even in cases where it is inevitable to extend the period due to a very special circumstance in individual cases, it shall be deemed that in the case of a claim for damages due to a tort, the period of time may not exceed three years, which is the short-term extinctive prescription period stipulated in Article 766(1) of the Civil Act (see Supreme Court en banc Decision 2012Da202819, May 16, 2013). In addition, in calculating the above maximum three years, the initial date was the date of the past fact-finding decision conducted by the Settlement Commission, and it does not mean that the Plaintiffs were aware of such fact (see Supreme Court Decision 2035Da239, July 25, 20139, 20139, 2013.

In light of the above legal principles, even if there were special circumstances in which the Defendant Republic of Korea brought the instant lawsuit only because it did not take any active measures, the Plaintiffs were entitled to exercise their rights until May 29, 2010, within a maximum of three years from May 29, 2007, which was the date when the previous company reorganization committee set to the Deceased with respect to the instant case, by filing the instant lawsuit against the Defendant Republic of Korea on June 3, 2010, it is apparent that the Plaintiffs exercised their rights. Accordingly, it is apparent that the Plaintiffs filed the instant lawsuit beyond a three-year period from the date of the truth-finding decision. Accordingly, the Plaintiffs’ re-claim cannot be deemed to constitute abuse of rights against the principle of trust and good faith.

C. Sub-committee

Therefore, the claim for damages due to Defendant Korea’s default liability or tort liability is without merit.

6. Conclusion

Therefore, the plaintiffs' primary claims against the defendant H Scholarship Association and the conjunctive claims against the defendant's Republic of Korea are dismissed in entirety due to the lack of reasonable grounds. Since the judgment of the court of first instance is just in conclusion, the plaintiffs' appeal is dismissed in entirety as it is without merit.

Judges

Justices Kim Chang-chul, Counsel for the defendant

Judges Maximum-type Table

Judges Dok-ju

Site of separate sheet

A person shall be appointed.

Note tin

1) Paragraph 3 of Article 2 of the Emergency Monetary Measures Act (Law No. 1088, Jun. 9, 1962) provides that the ratio of conversion (i) and conversion of Won shall be 10 per exchange.

(2) the Corporation.

2) At present, the face value of ○○ Broadcasting Shares is KRW 5,000, KRW 10,000, KRW 10,000, and KRW 5,000, the face value of ○○○ Broadcasting Shares is KRW 5,00, and KRW 5,00.

They seem to have calculated 1,00 won on the par value of the ○○ ○○ ○○ Sheet shares. For example, Plaintiff C’s claim amount is the amount of O broadcasting shares.

A total face value of 2,725,000 won (5 x 5,000 x 5,000), 3,198,000 won (3, 198 x 1,000 x 1,000), and the face value of OO broadcasting stocks.

Total 102,010,000 won (20,402 x 5,000) are 107,93,000 won.

3) Act (Law No. 618, Jun. 10, 1961)

Article 18 (Central Information Book)

(1) In order to eliminate the indirect invasions and obstacles to revolutions and occupational performance of a mountain force, the Central Information Department shall be established in the National Council for Reconstruction.

(2) The Central Information Department shall have the head of the Central Information Department and other necessary personnel.

(3) Necessary matters concerning the preceding two paragraphs shall be prescribed separately by Acts.

Central Information Division Act (Law No. 619, Jun. 10, 1961)

Article 1 (Functions)

The State to coordinate and supervise domestic and foreign information related to national security and activities for criminal investigation and investigation of information by the Government, including the Armed Forces;

The Central Information Board shall be established under the direct control of the Plenary Session (hereinafter referred to as the "Plenary Session").

Article 4 (Authority and Duties of Personnel)

(1) The head of a department shall take charge of the affairs of the Central Information Department under the order of the chairperson of the highest meeting, and the State shall investigate the information under his/her employees and the information under

The direction and supervision of employees of other agencies.

Article 6 (Right of Acceptance)

(1) The head of the Central Information Department, the head of a chapter, and an investigator shall have the investigative authority over crimes related to his/her duties.

(2) The investigation under the preceding paragraph shall not be under the direction of a public prosecutor.

심급 사건

-서울중앙지방법원 2012.2.24.선고 2010가합56697

서울고등법원 2013.10.16.선고 2012나31040

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