Gangwon-do Confucian School Foundation (Attorney Hong Ho-hun, Counsel for the defendant-appellant)

Republic of Korea (Attorney Lee Jae-soo, Counsel for defendant)

March 25, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall implement the procedure for the registration of ownership transfer for each real estate listed in the separate sheet to the plaintiff.

1. Basic facts

A. In the land investigation division which was investigated and prepared by the Korea Land Survey Board, the Korea Land Survey Board, the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey Board of the Korea Land Survey

B. Meanwhile, each real estate listed in the separate sheet is used as the land which was successively divided from the land before the division and used as the land of Samyang Confucian School, etc. or as the road thereof. As to the real estate listed in the separate sheet No. 1 on September 18, 1979, the Defendant completed each registration of preservation of ownership on each real estate listed in the separate sheet No. 2 and Paragraph 3 on July 11, 1986 (hereinafter “instant real estate”).

[Ground of recognition] Facts without dispute, Gap 1-3, 10, 11 (including paper numbers), the purport of the whole pleadings

2. Both claims and judgment

A. Both claims

(1) The plaintiff's assertion 1

The instant real estate corresponds to the “ Confucian School Property” stipulated in the U.S.A. military law No. 194 (hereinafter “194 statutes”), and became part of the fundamental property of the Plaintiff Foundation established pursuant to Article 4 of the 194 statutes. Nevertheless, the registration of preservation of ownership in the name of the Defendant was completed with respect to the instant real estate. Therefore, the Defendant is obliged to implement the registration procedure for ownership transfer based on the restoration of real name to the Plaintiff, the real owner.

(2) The defendant's assertion

Inasmuch as the instant real estate was assessed under the name of the State at the time of Japanese occupation, it does not belong to the Confucian Schools, which is the foundation of the non-corporate foundation, and thus does not constitute “ Confucian School Property” under the Act and subordinate statutes No. 194. Therefore, it cannot be deemed that the instant real estate belonged to the fundamental property of the Plaintiff Foundation pursuant to the Act and subordinate statutes No. 194, and thus, the Plaintiff’s claim of this case cannot be accepted.

B. Determination

(1) The key issue of the instant case is whether the instant real estate belongs to the fundamental property of the Plaintiff Foundation in accordance with the said Act and subordinate statutes, which is a “ Confucian school property” as referred to in the law No. 194.

(2) Article 2 of the Acts and subordinate statutes No. 194 provides, “The term “the property of a Confucian school in this Decree refers to movable property, real property, and other property created for the maintenance and management of a Confucian school.” Article 4 provides, “The property of a Confucian school is a foundation by Do. Of the property of a Confucian school, real property, such as land and buildings, and real property and the organizations of hometown shall become its fundamental property (see evidence 5).”

However, as seen earlier, the instant real estate is “real estate created for the maintenance and management of Confucian Schools” under Article 2 of the Act and subordinate statutes No. 194, which is the land used as the land of Samyang Confucian School or as the road thereof, and thus, constitutes a Confucian School’s property under the said Act and subordinate statutes. However, it is reasonable to deem that the instant real estate as a Confucian School’s property under the said Act and subordinate statutes, which is a Confucian School’s property under the said Act and subordinate statutes, may not be deemed to belong to the fundamental property of Plaintiff Foundation established pursuant to

① The instant real estate was a Japanese owner, which was a land that was assessed under the name of the State at the time of the Japanese occupation. This is different from the land that was created for the maintenance and management of the Samwon-gun, Hanwon-gun, ( Address 5, 6, 7, 8, and 9 omitted) adjacent to the instant real estate (hereinafter “the instant adjoining real estate”) that was assessed as “Twon-gun’s property” (see evidence 3, 8). In other words, it is reasonable to view that the instant real estate was owned by Japan for the purpose of the maintenance and management of Samwon-gun’s Confucian School at the time of the Japanese occupation.

② Meanwhile, Article 2 of the Military Affairs Act of the United States Armed Forces Act (hereinafter “the Act and subordinate statutes of the United States Armed Forces”) provides that “The ownership of the property and other kinds of property that were owned or managed directly or indirectly by the Government of the Republic of Korea, the institutions or flag citizens of the Republic of Korea, the companies (a) and the Republic of Korea after August 9, 1945, or of other kinds of property and other income that were located within the jurisdiction of the headquarters of the Republic of Korea shall be the ownership of the said property and other income, acquired on September 25, 1945 and entered in the United States Armed Forces of the United States Armed Forces (hereinafter omitted).” According to the above provision, the neighboring real estate of the Republic of Korea, which were owned by the Confucian Army of the Republic of Korea at the time, was reverted to the United States Armed Forces in accordance with the enforcement of the Act and subordinate statutes of the Republic of Korea.”

③ However, it is reasonable to interpret that the Act No. 194, enacted and enforced after the Act and subordinate statutes No. 33, supra, did not intend not only to vest the property owned by a third party, but also the property owned by a third party, other than a local Confucian school, in the property of the Confucian school established by Do. In other words, the Act and subordinate statutes No. 194, supra, intended to vest only the property owned by a third party, other than a local Confucian school, in the property of the Confucian school, as the basic property of the Confucian school foundation established by Do. If such interpretation is not made, it would result in the division of the property owned by a third party, other than a local Confucian school, into the Confucian school foundation without any justifiable compensation. This is also apparent in light of the fact that Article 13 of the Act and subordinate statutes provides that “The rights and duties of the Confucian school property that occurred before the enforcement of this Decree shall be deemed legitimate only in the sense that the Confucian school foundation under this Ordinance succeeds to the property.”

④ If the above-mentioned statutes were interpreted, the real estate in the name of the State was assessed at the time of Japanese colonial rule, and the real estate in this case reverted to the U.S. military administration at the time of the enforcement of the statute No. 194 is not a Confucian school property, which belongs to the ownership of the Samyang-gun, a local Confucian School at the time of the enforcement of the statute, and thus, it cannot be said that it belongs to the basic property of the

(3) Therefore, the Plaintiff’s assertion based on the premise that the instant real estate belongs to an endowment of the Plaintiff Foundation pursuant to the statute No. 194 is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is without merit.

[Attachment]

Judge Long-Term:

1) It is reasonable to deem that the assertion regarding the acquisition by prescription of possession on December 3, 2014, stated in the Plaintiff’s written brief submitted on December 3, 2014, was withdrawn (see the statement of Plaintiff’s agent at the fourth date for pleading

2) It is deemed that a kind of non-corporate foundation has the character (Supreme Court Decision 2008Da7314 Decided April 10, 2008). It is based on the fact-finding by the court below that “Sacheon-gun Confucian School was a party to whom its own rights and obligations may be the subject of its own rights and obligations,” which is understood as based on the premise that it can be the subject of its own rights and obligations).