Republic of Korea (Government Law Firm Corporation, Attorneys Lee In-hae, Counsel for defendant-appellant)

Defendant (Attorney Han-soo et al., Counsel for defendant-appellant)

March 25, 2010

Seoul Central District Court Decision 2009Da5266 Decided September 30, 2009

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

With respect to the Plaintiff KRW 446,50,000 and KRW 200,000 among them, the Defendant shall pay to the Plaintiff 5% per annum from September 9, 2006 to the delivery date of a duplicate of the complaint of this case, and from December 28, 2006 to the delivery date of a duplicate of the complaint of this case, 246,50,000 won, 20% per annum from the next day to the delivery date of a duplicate of the claim of this case and the cause for modification, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows: (a) adding evidence No. 9 to the Defendant’s assertion that the land Nos. 1 and 2 was not an asset acquired in return for pro-Japanese activities; and (b) adding judgment as to the matters alleged by the Defendant as stated in the following Paragraph 2, it is identical to the reasoning for the judgment of the first instance court; and (c) thus, it is acceptable in accordance with the main text

2. Additional matters to be determined;

A. The defendant asserts that Articles 2 through 5 of the Special Act on the Reversion of Property of Pro-Japanese and Anti-National Collaborators to the State (hereinafter "Special Act") violate the Constitution for the following reasons.

(1) Since the above special law is a retroactive legislation and provides an annual system, it is clearly in violation of Article 13(2) and (3) of the Constitution.

(2) Even if the property was the property of pro-Japanese and anti-national actors, it would be against the basic ideology of the Republic of Korea succeeded to the legal tradition of the provisional government of the Republic of Korea and the fundamental order of free democracy.

(3) The so-called “presumed provision” under the Special Act (the latter part of Article 2 subparag. 2) is presumed to be the property acquired by a pro-Japanese act person in return for pro-Japanese occupation in return for pro-Japanese occupation and to vest in the State by denying inheritance by descendants thereafter. This is in violation of Articles 11(1), 23(1), and 37(1) of the Constitution of the Republic of Korea and the principle of due process of law, and also violates the Constitution of the Republic of Korea, which is the basic ideology of free democracy by unilaterally exempting or reducing the burden of proof by unilaterally exempting or reducing the burden of proof of the State by priorizing the burden of proof under the

B. Determination

(1) Whether Article 13(2) and (3) of the Constitution are violated

(A) Basic ideology and legislative purpose of the Special Act

Part III of the Decree on the Provisional Government of the Republic of Korea provides that "The Government of the Republic of Korea may enact a special law that punishs malicious anti-national acts before August 15, 1948 (Seo 1945)," which stipulates that "the National Assembly which enacted this Constitution may establish a special law that punishs malicious anti-national acts on or before August 15, 1948 (Seo 1945)," and the current Constitution provides that "The Korean citizens who have light or traditional history succeed to the law of the Provisional Government of the Republic of Korea established by the March 1st Movement."

As above, the succession of the Provisional Government of the Republic of Korea, which was established by the specialized body of the Constitution of the Republic of Korea with norm since the declaration of the constitutional decision of the people who are the power of the formulation of the Constitution, is to mean that the Republic of Korea is constructed based on the contribution and sacrifice of the independent movement fighted against the Japanese colonial rule, and the starting point of the Constitution is to build a new country which succeeded to the legal system of the provisional Government of the Republic of Korea by denying the Japanese colonial rule. The legislative spirit of such provisional Government of the Republic of Korea, Article 101 of the Addenda to the Constitution of the Republic of Korea, Article 101 of the current Constitution, and the legislative spirit of the specialized body of the Constitution, in cooperation with the Japanese colonial rule, excludes the Republic of Korea from the subject of protection of property rights acquired by the illegal anti-national actors in return for their friendship, and at the same time, is to be the strong expression of the people, who are the power of the Japanese colonial rule, to implement the basic ideology of the Japanese constitutionalism and the basic ideology of the Japanese colonial rule.

(B) Whether Article 13(2) of the Constitution is violated

On the other hand, even in cases of a petition-oriented legislation that aims to deprive an individual of his/her legal status that has been formed by the existing law and then deprives through an ex post facto legislation, it may be exceptionally allowed in cases where the citizen could have expected retroactive legislation exceptionally, where the legal status is uncertain, confused, or there is no benefit of trust that can be protected by retroactive legislation, where there is no loss of a party by retroactive legislation, or where it is minor, or where the public interest needs to be modified, while it is very important to protect an individual's trust in his/her legal status because it is relatively necessary to protect the individual's trust in the existing legal status, so it is objectively justified.

However, pro-Japanese act is an act of pursuing the honor and father film of the descendants of the self-employed after being released from office and property for the purpose of restoring national sovereignty in return for the booming the anti-Japanese independent movement for the purpose of restoring national sovereignty against the Republic of Korea, and constitutes a serious anti-state act against the nation and the State. The special law that realizes pro-Japanese property acquired in return for such pro-Japanese act is not in violation of the Constitution because the public interest needs to immediately establish a national spirit and the public interest needs to be important, and rather, the other party to whom the property is recovered pursuant to the special law should be deemed to foster the constitutional ideology and spirit. On the other hand, the other party to whom the property is recovered pursuant to the special law is not in violation of the Constitution, but the ownership of pro-Japanese property by a person who was bequeathed or donated with the knowledge that it is a pro-Japanese or his heir, knowing that it is a property, lack legitimacy of acquiring the property itself and succession without compensation, and thus, it cannot be objectively justified that the provisions of Article 25 (1) or 2 (2) of the Constitution are objectively justified.

(C) Whether Article 13(3) of the Constitution is violated

Article 13(3) of the Constitution provides that “All citizens shall not be subject to disadvantageous treatment due to an act of relatives, not a person’s own act.” This applies only to cases where “all citizens shall not be subject to disadvantageous treatment due to an act of relatives, not a person’s own act.” This is only applicable in the absence of substantial relevance between the act of relatives and the person himself/herself

However, the pro-Japanese property stipulated in Articles 2 and 3 of the Special Act refers to the property which is acquired or succeeded to in return for cooperation with the Japanese colonialism, or which is aware that it is a pro-Japanese property. Such property owned by descendants of pro-Japanese and anti-national actors is not related to pro-Japanese acts of pro-Japanese and anti-national actors, but is itself a property acquired in return for pro-Japanese and anti-national acts, and its original purpose is to restore the ownership of property that should not be owned by the descendants to the State, and thus, it can be recognized that “the substantial meaningful relationship between the relatives and the principal” is recognized. Accordingly, the provisions of the Special Act do not violate the prohibition of the pro-Japanese relationship stipulated in Article 13(3) of the Constitution.

(2) Whether the basic ideology of the Republic of Korea and the fundamental order of free democracy are violated

In light of the above legislative purpose, the provisions of the Special Act are inevitable results in light of the importance of the public interest of the Special Act for the purpose of realizing the constitutional ideology of the March 1st Movement, which is resistance against the Japanese colonialism. As such, since the fact that the pro-Japanese and anti-national behaviorr acquires, testamentary gift, or gift in return for pro-Japanese and anti-national act, the justification for the reversion of the State is stipulated according to the constitutional ideology that the property acquired, bequeathed, or donated in return for the pro-Japanese and anti-national act cannot be the property protected under the Constitution, the mere fact that the pro-Japanese property is retroactively reverted to the State does not constitute a violation of the basic ideology of the Republic of

(3) Whether the latter part of Article 2 subparag. 2 of the Special Act violates the Constitution

(A) Whether Article 23(1) of the Constitution is violated

As above, the provisions of the Special Act stipulating the reversion of pro-Japanese property to the State stipulate the justification for the reversion of the State in accordance with the constitutional ideology that the pro-Japanese and anti-national acts cannot be the property acquired, inherited, bequeathed, or donated in return for pro-Japanese acts. As such, the mere fact that pro-Japanese property belongs to the State retroactively as claimed by the Defendant is that the Special Act infringes on the people’s property rights guaranteed by Article 23(1) of the Constitution.

(B) Whether Article 37 of the Constitution and the principle of due process (including the assertion of burden of proof) are violated or not.

1) In particular, during the state action, the principle of excessive prohibition in legislative action refers to the limit of the basic principles or legislative activities to be observed by the State in carrying out legislative activities that limit the fundamental rights of the people. The purpose of the legislation that intends to limit the fundamental rights of the people is to recognize its legitimacy in accordance with the Constitution and laws (grounded on legitimacy of the purpose), the method must be effective and appropriate in order to achieve the purpose of the legislation (reasonable of the method). Even if the measure of restricting the fundamental rights chosen by the legislators is appropriate for the achievement of the legislative purpose, the restriction of the fundamental rights should be limited to the necessary minimum (minimum of damage), and the public interest protected by the legislation is greater when balancing the public interest to be protected by the legislation and the private interest infringed upon by the legislation (e.g., the balance of legal interests) refers to the principle of proportionality, one of the basic principles naturally derived from the principle of the rule of law. Article 37(2) of the Constitution of the Republic of Korea recognizes the principle of excessive restriction of the freedom and rights of all the people as an essential restriction of legislation.

2) Meanwhile, the latter part of Article 12(1) and the main sentence of Article 12(3) of the current Constitution stipulate the principle of due process to guarantee physical freedom by stipulating that “any person shall not be arrested, detained, seized, searched, or examined except as otherwise provided by Acts, and shall not be punished, subject to security measures or forced labor except as otherwise provided by Acts and subordinate statutes,” and that “when arrested, detained, seized, seized, or searched, a warrant issued by a judge upon request of a prosecutor shall be presented according to due process.” It is reasonable to see that the subject is not limited to punishment, security measures, forced labor, etc. but is merely an example of the subject of application. Accordingly, the principle of due process of law has a substantial meaning that not only formal procedures but also substantial legal reasonableness and justification as one of the independent constitutional principles, and its subject is limited to criminal proceedings, but also its application has been established as a general rule of law or a principle of statutory reservation based on the determination of whether the substantive contents of the law at issue in whole with respect to all legislative actions have rationality and justification.

3) Therefore, in the latter part of Article 2 subparag. 2 of the Special Act, I would like to examine whether the appropriateness and constitutionality can be recognized in accordance with the principle of excessive prohibition under Article 37 of the Constitution or the principle of due process under the Constitution.

(1) Whether the legislative purpose is justifiable

Article 1 of the Special Act provides that "the purpose of this Act is to realize justice and to realize the constitutional ideology of the 3/1 movement against Japanese sovereignty by devolving the property accumulated in the anti-national act that cooperates with the colonial rule of the Japanese colonial rule, and strong our people, and by protecting a third party acting in good faith, thereby contributing to the State at that time, thereby contributing to the stability of transactions to the State, thereby contributing to the realization of justice, the national spirit, and the realization of the constitutional ideology of the 3/1 movement against Japanese sovereignty." This is consistent with the constitutional ideology of succeeding the legal tradition of the provisional government of the Republic of Korea established by the 3/1 movement, while promoting the safety of transactions by protecting a third party acting in good faith. Therefore, the legitimacy

(2) Whether the means are appropriate.

As a way to achieve the above legislative purpose, there may be various methods such as criminal punishment of pro-Japanese and anti-national actors, restrictions on the public rights, and the recovery of property. However, the Special Act has selected the method of reverting pro-Japanese property to the State. In particular, in order to achieve the above legislative purpose, the Special Act stipulates pro-Japanese property as “property acquired as compensation by a pro-Japanese and anti-national actors to cooperate with the Japanese colonialism from the opening of the war of the Russian War, in which the deprivation of national rights began to take place, or inherited property or inherited property knowing that it is an inherited property or pro-Japanese property,” and the pro-Japanese and anti-national actors also clearly stipulate that the person prescribed in the Special Act on the Finding of the Truth of Anti-National Acts under the Japanese colonial Rule is clearly defined as the person stipulated in the Special Act on the Finding of the Truth of Anti-National Acts, and thus the propriety of the means is recognized

3. Whether the infringement is minimum

From among the various kinds of pro-Japanese acts under the Special Act on Finding the Truth of Anti-National Acts under the Japanese colonial Rule, a person who committed another pro-Japanese and anti-national act is subject to the application of the principle of significant and scope, and who committed another pro-Japanese and anti-national act is limited to a person whose degree of pro-Japanese is extremely serious according to the defendant's decision. In addition, Article 3 of the Special Act provides that a person, etc. who refused or paid an act of pro-Japanese or actively participated in an independent movement may be recognized as excluded from the application of the principle. In addition, the proviso of Article 3 of the Special Act takes into account the protection of a third party, etc. in the event of the transaction of pro-Japanese and anti-Japanese property, and as seen earlier, it is possible to contest whether pro-Japanese and anti-national act are pro-Japanese through proof during the specific

(4) A balance of legal interests.

Although the recovery of pro-Japanese property acquired by a pro-Japanese and anti-national act in return for pro-Japanese acts is consistent with the ideology of the Constitution even if the time has been delayed, the necessity of public interest has increased, while the disadvantage suffered by the other party who is subject to the recovery of property is merely the recovery of property formed in return for pro-Japanese and anti-national acts, not the property legitimately acquired through his/her own effort, and thus, it can be deemed extremely weak and reasonable to deem that the special law provisions could have been anticipated in light of the ideology of the Constitution. Thus,

4) As to the assertion of burden of proof

The special law does not completely exempt the plaintiff's burden of proof in the burden of proof, but it does not completely exempt the person concerned from the burden of proof, the fact that the person concerned is a pro-Japanese offender, the fact that the property is acquired by the pro-Japanese offender from the opening of the war of Russ and the Korean War to the sunset, the plaintiff must bear the burden of proof, and the fact that the acquired property is acquired as a price for pro-Japanese cooperation, and it is almost impossible to prove that the plaintiff acquired certain property in the situation that has already passed more than half of the century from the piracy. On the other hand, it is most well known about the internal power of the property held by them, and there is a high possibility that they have evidence about the financing source of the acquisition of the property, and the legality of the administrative act is not always prohibited under the Constitution by presumption of legal relations based on the fact that the above presumption provision is merely a matter of the burden of proof and does not affect the substantive substance and the extent of the means of proof under the Constitution.

5) Therefore, the latter part of Article 2 Subparag. 2 of the Special Act cannot be deemed to violate Articles 23(1) and 37 of the Constitution and the principle of due process.

(B) Whether Article 11(1) of the Constitution is violated

1) In examining whether the principle of equality is violated or not, the degree of strict standard of review and the degree of relaxed standard of review are different depending on the degree of legislative formation authority recognized by the legislators. In the case where the Constitution requires equality especially or the relevant basic rights are seriously restricted due to discriminatory treatment, the strict standard of review shall be applied. However, in other cases, it is sufficient to examine the relaxed standard of review according to the principle of prohibition against a person who is a relaxed standard of review.

2) However, pro-Japanese and anti-national actors or descendants do not constitute specially demanding equality in the Constitution, and since property rights regarding pro-Japanese property cannot be deemed as fundamental rights protected by the Constitution, they should be judged according to the mitigated principle of prohibition against the existing individuals of the examination. However, it should be determined by applying the strict method of examination under the assumption that property rights protected by the Constitution are property rights.

3) The strict review is not limited to a review under the principle of prohibition of a person who examines whether there is a reasonable reason, but also means a review under the principle of proportionality, namely, whether there is a strict proportionality between the purpose and means of dealing with discrimination. As seen earlier, the latter part of Article 2 Subparag. 2 of the Special Act recognizes the legitimacy of the legislative purpose. In accomplishing the above legislative purpose, the suitability as a policy means, necessity of discrimination, and balance of legal interests, the owner of a pro-Japanese property cannot be deemed to be a arbitrary discrimination against the principle of proportionality.

4) Therefore, as long as it cannot be deemed that a strict examination scale violates the principle of equality, the same applies the mitigated examination scale. Therefore, the special law provisions cannot be said to violate the principle of equality as stipulated in Article 11(1) of the Constitution.

(4) Sub-determination

Therefore, as seen earlier, since the special law provisions cannot be deemed to violate the Constitution, the first defendant's assertion on a different premise is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-ju (Presiding Judge)