Equipo Nizkor - Republic of Korea: Confiscation of Property Awarded for Pro-Japanese Collaboration During Japanese Occupation Case.

2. Confiscation of Property Awarded for Pro-Japanese Collaboration During Japanese Occupation Case

[23-1(A) KCCR 276, 2008Hun-Ba141, 2009Hun-Ba14·19·36·247·352, 2010Hun-Ba91(consolidated), March 31, 2011]

Questions Presented

1.Whether Article 2, Item 1, Mok 1(revised by Act No. 7975 on September 22, 2006, hereinafter, the 'Definition Provision') of the Special Act to Redeem Pro-Japanese Collaborators' Property (hereinafter, the 'Special Act') which regards the person who conducted one of the acts described in Article 2, Item 6 through Item 9 of 'the Special Act on the Fact-Finding of Anti-National Activities under the Japanese Occupation' as a pro-Japanese collaborator whose property acquired in the Japanese colonial period (1910-1945) is subject to governmental confiscation, violates the rule of clarity (negative)

2.Whether the second sentence (revised by Act No. 7769 on December 29, 2005, hereinafter the 'Presumption Provision') of Article 2 Item 2 of the Special Act which presumes the property of the pro-Japanese collaborator acquired in the period from the outbreak of the Russo-Japanese war to August 15, 1945 as property acquired as a reward for pro-Japanese collaboration (hereinafter, the 'Pro-Japanese Collaborator's Property') infringes on the petitioners' rights of access to courts and is inconsistent with due process (negative)

3.Whether the text (revised by Act No. 7769 on December 29, 2005, hereinafter, the 'Confiscation Provision') of Article 3 Section 1 of the Special Act which allows the government to confiscate the Pro-Japanese Collaborator's Property with the time of confiscation retroactively applied to when the land was acquired or given as a gift, is against Article 13 Section 2 of the Constitution as a genuine retroactive legislation (negative)

4.Whether the Confiscation Provision infringes on the petitioners' property rights (negative)

5.Whether the Confiscation Provision is against the principle of equality (negative)

6.Whether the Confiscation Provision is inconsistent with the rule against guilt-by-association (negative)

Summary of Decisions

1.We do not consider the part of 'the person who conducted one of the acts described in Article 2, Item 6 through Item 9 of Special Act on the Fact-Finding of Anti-National Activities under the Japanese Occupation' of the Definition Provision as vague. Also, one can sufficiently grasp the meaning of a person 'actively engaged in the independence movement' as the person who was very enthusiastically and aggressively involved in the movement to win our nation's independence during the Japanese colonial period.

2.The Presumption Provision neither infringes on the right of access to courts nor violates due process of law for the following reasons: It is difficult for the state to prove whether a certain property is Pro-Japanese Collaborator's Property because the Korean government's effort to confiscate those properties is being made after quite a long time after the liberation from Japanese occupation. On the contrary, it is highly probable that the person who acquired those properties know the details about how they have come to own the properties. In addition, the Presumption Provision does not entirely shift the burden of proof to the Collaborator's side and a procedural safeguard, an administrative suit to rebut that presumption is available. Even in the case where disposition authorities or the courts do not easily accept the rebuttal, the legislature is not to be blamed for its abuse or deviation of legislative discretion in enacting the Presumption Provision, but the disposition authorities or the courts should be blamed for not fulfilling the aims of that Provision.

3.The Confiscation Provision amounts to a genuine retroactive legislation, but some retrospective law can be allowed when such law, as an exception, is justified because, for example, people could have expected such retroactive legislation. In this case, pro-Japanese

collaborators could reasonably have expected the retroactive confiscation of the property rewarded for collaboration with Japan considering the anti-national nature in the course of acquisition of such property and the preamble of the Constitution declaring to uphold the spirit of the Korean interim government established during the Japanese occupation. Furthermore, because confiscation of Pro-Japanese Collaborator's Property is a national task taken as a very exceptional measure in our history, the concern that retroactive legislations may become frequent with this Court's holding of constitutionality of this particular retroactive legislation can be fully removed. Therefore, the Confiscation Provision is retroactive law but is not against Article 13 Section 2 of the Constitution.

4.The Confiscation Provision pursues legitimate aims as it intends to restore the spirit of the nation and realize the constitutional ideal of the March 1 Independence Movement that resisted Japanese Imperialism. The Confiscation Provision is a proper means in achieving such legislative aims, because it would be much difficult to handle Pro- Japanese Collaborators' Property under the existing property law system including civil law. Among the various types of Pro-Japanese and anti-national activities defined under Special Act on the Fact- Finding of Anti-National Activities under the Japanese Occupation, the Confiscation Provision limits the types of activities subject to this provision to only four types which are serious and clear in their scope. Moreover, there are exceptions for the Pro-Japanese Collaborator who later actively engaged in the independence movement. In addition, a Pro-Japanese collaborator and his/her descendants can prevent confiscation by proving that the property at issue was not acquired as a reward of collaboration with Japan and there is a provision to protect a bona fide third party. Given the foregoing reasons, we find that the Confiscation Provision is not against the rule of least restrictive means and, considering the legitimacy of rectifying history and the value of true social integration, it strikes a balance among the interests related. Therefore, the Confiscation Provision does not infringe on the petitioners' property rights.

5.We do not find that the Confiscation Provision is against the principle of equality because the protection of Pro-Japanese Collaborator's Property is in itself against the sense of justice and the properties subject to the Confiscation Provision are limited to those which can be recognized as a serious matter clearly classified as Pro-Japanese Collaborator's Property.

6.The Confiscation Provision does not violate the rule against guilt-by-association, because the provision does not confiscate the descendant's property acquired by his or her own economic activities or inherited property other than those deemed Pro-Japanese Collaborator's Property just for the reason his or her ascendant was involved in pro-Japanese activities.

Concurring Opinion of Justice Kim, Jong-Dae

Insofar as the Court interprets Article 13 Section 2 of the Constitution, which prohibits the deprivation of citizens' property right by retrospective legislation, to allow citizens to be deprived of their property rights by retroactive legislation when there are special reasons, it would certainly be a creation of a constitutional provision. In my view, this is neither an appropriate construction of the Constitution nor consistent with the constitutional doctrine of separation of powers.

Nevertheless, given the spirit and the tradition in our Constitution as well as the backgrounds in its creation, property acquired as a reward of collaboration with Japan cannot be protected by the 'property right' provision of our Constitution, because the Constitution of this country was established through the fight against and by overcoming Japanese imperialism. However, the government shall abide by constitutional restraints in locating the Pro-Japanese Collaborator's Property and setting up the confiscation process of that property. In this case, the provisions at issue do not appear to be against that constitutional restraint.

Concurring Opinion of Justice Mok, Young-Joon

Examining the preamble of the Constitution requiring maintenance of the spirit of the Korean interim government established during Japanese occupation, and the crime of treason defined in the criminal code of the Daehan Empire (1897-1910), we should conclude that criminal nature was inherent in the acquisition of Pro-Japanese Collaborators' Property and that criminal nature has been persistent even up to now, as our country has failed to officially settle the past. Thus, the Confiscation Provision is a quasi retroactive legislation that has effect on ongoing facts or legal rights.

Dissenting Opinion of Justices of Lee, Dong-Heub and Mok, Young-Joon: Partial limited Unconstitutionality

Our modern system of land ownership was established in 1912 when the Japanese colonial government started to file up the land survey records. Thus, even land acquired before that land survey in 1912, and in no relation with pro-Japanese anti-national activities, is likely to be presumed as Pro-Japanese Collaborator's Property under the Presumption Provision. While no official public notice or registration of land ownership existed before 1912, the Pro-Japanese Collaborator has to provide evidence to prove that the land at issue was acquired before 1904 in order to rebut the presumption. But before the drawing up of land survey records, there were no method of public announcement of land ownership. Furthermore, facts that happened more than 100 years ago are very difficult to prove. As a result, it is most likely that even property unrelated to collaboration with Japan can be deprived under the Presumption Provision. Thus, it is unconstitutional as far as the part of 'acquired' of the Presumption Provision is interpreted to include property acquired before 1904 but recorded as acquired thereafter through the land survey of 1912.

Dissenting Opinion of Justices Lee, Kang-Kook and Cho, Dae-Hyun: Partial Unconstitutionality

Even if it is absolutely necessary for the punishment of Pro-

Japanese and anti-national activities and confiscation of the Pro- Japanese Collaborator's Property to be carried out, the means of punishment and confiscation should be compatible with the Constitution. The Confiscation Provision amounts to a deprivation of property right by retroactive legislation. However, Article 13, Section 2 of the Constitution, which was introduced to correct the history of repeated political and social retaliations enabled by retroactive legislations during the period from the April 19 Democratic Revolution in 1960 through the May 16 Military Coup in 1961, is an absolute prohibition permitting no exceptions. In the Instant case, the Confiscation Provision is retroactive legislation that deprives the petitioners' property rights with no constitutional basis, violating Article 13, Section 2 of the Constitution.

Parties

PetitionersMin ○-Ki and sixty three others

Underlying CasesSeoul Administrative Court 2008Ku-Hap9034 Revocation of Decision of Pro-Japanese Collaboration Property Confiscation (2008 Hun-Ba141)Seoul Administrative Court 2008Ku-Hap31482 Revocation of Confiscation Disposition (2009Hun-Ba14)Seoul Administrative Court 2008Ku-Hap43259 Revocation of Confiscation Decision (2009Hun-Ba19)Seoul Administrative Court 2008Ku-Hap33914 Revocation of Confiscation Disposition (2009Hun-Ba36)Seoul Administrative Court 2007Ku-Hap43648 Revocation of Decision of Pro-Japanese Collaboration Property Confiscation (2009 Hun-Ba247)

Seoul High Court 2009Nu7310 Revocation of Decision of Pro-Japanese Collaboration Property Confiscation (2009Hun-Ba352)Seoul High Court 2009Nu12725 Confirmation of Invalidation of Decision of Pro-Japanese Collaboration Property Confiscation (2010 Hun-Ba91)

Holding

Article 2 Item 1 Mok 1 of the Special Act to Redeem Pro-Japanese Collaborators' Property (revised by Act No. 7975 on September 22, 2006), the second Paragraph of Item 2 and the main text of Article 3 Section 1 of the Special Act to Redeem Pro-Japanese Collaborators' (both revised by Act No. 7769 on December 29, 2005) are not against the Constitution.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1. 2008Hun-Ba141

(A) Deceased Min ○-Hui (1852. 05. 15. ~ 1935. 12. 31., hereinafter 'Min ○-Hui') who had been conferred the title of viscount by the Japanese colonial government in Korea on October 7, 1910 for his contribution to the Japanese annexation of Korea, received a fifty thousand won government bond as a royal gift on January 13, 1911, and was conferred a rank of Jong 4 on December 7, 1912, being promoted to a rank of Jeong 4 on December 27, 1919, a rank of Jong 3 around 1928 and a rank of Jeong 3 around the year of his death, respectively.

On June 20, 1918, Min ○-Hui was appointed as a member of the establishment committee of Chosun Siksan Bank which was established to support the economic policy of Japanese colonialism and he was also appointed vice president of Chosun Education Association–an advisory body for the Japanese governor–general for the promotion of policy of Hwangkookshinminwha, a movement of allegiance to the Emperor of Japan. He was also a founding member of Chosunshilupkurakbu, an entrepreneurs' association established in order to integrate Korean people into Japanese colonialism, and later worked as its advisor. He also acted as advisor for Daejeongchinmokhoi, an institution for integration of Korean people into Japanese colonialism.

Min ○-Hui, for his pro-Japanese collaboration as described above, received Showadaereginyumjang, a commendation, on November 16, 1928, a silver cup on November 22, 1928, a pair of silver cups on October 1, 1935 and a gold cup around year of his death respectively.

(B)The titles of lands which were conferred to Min ○-Hui by the Japanese colonial government as referred to in attachment 2, thereafter have been transferred and registered to his descendants (petitioners #1 through #20 as referred to in attachment 1).

The Investigative Commission on Pro-Japanese Collaborators' Property (hereinafter, the "Commission"), on November 22, 2007, made a decision that Min ○-Hui is "A person who engaged in pro-Japanese and anti-national activities, whose property is subject to confiscation" articulated in Article 2, Item 1 of the Special Act to Redeem Pro- Japanese Collaborators' Property (hereinafter, the "Special Act") and that the land described above should be seized by the Korean government because the land is a Pro-Japanese Collaborator's Property as defined in Article 2, Item 2 of the Special Act.

(C)Against the decision of confiscation, Min ○-Hui's descendants, petitioners in this case, filed a suit (Seoul Administrative Court 2008 Ku-Hap 9034) to vacate the confiscation decision and thereafter, pending the suit, moved the court (Seoul Administrative Court 2008 A 2712) to request adjudication on the constitutionality of Article 2 through Article 5 of the Special Act, arguing these provisions are retroactive legislations in violation of Article 13 Section 3 and Article 23 Section 1 of the Constitution and therefore unconstitutional. When the administrative court consequently denied that petitioners' request on October 14, 2008, the petitioners, on November 19, 2008, filed this constitutional complaint.

2. 2009Hun-Ba14

(A) Deceased Lee ○-Ro (1838. 12. 2. ~ 1923. 5. 1, hereinafter 'Lee ○-Ro') who was conferred title of baron by the Japanese colonial government in Korea on October 7, 1910 for his contribution to the Japanese annexation of Korea, attended the title-awarding ceremony held in the Japanese governor's house and received a citation from Yamakata, the chief commissioner of governmental affairs, who gave the citation on behalf of the Japanese emperor on February 22, 1911. He personally received a twenty five thousand won government bond as a royal gift on January 13, 1911, and, 'as a person who has made a contribution to the relationship of two countries' received a medal in commemoration of Japanese annexation of Korea on August 1, 1912. He was conferred a rank of Jong 4 on December 7, 1912, and was promoted to a rank of Jeong 4 on December 10, 1920.

As the Japanese government established ○○ Kongjinhui in order to make propaganda for the success of Japanese colonization, Lee ○-Ro, as special member, engaged in activities justifying the Japanese occupation of Chosun. Lee ○-Ro, for his aggressive pro-Japanese collaboration, received Dyshowdaerekinyumjang, a commendation, on November 10, 1915.

(B)Lee ○-Ro was conferred the title of land in ○○-ri, Oeseo- myeon, Gapyeong-gun, Gyeonggi-do (later, the name of administrative district of Oeseo-myeon was changed into Cheongpyeong-myeon). After the decease of Lee ○-Ro and Lee ○-Sae on May 1, 1923 and January 15, 1948 respectively, the title of the aforementioned land was inherited by Lee ○-Sul, father of petitioner Lee ○-Ho, as sole heir. The land has been divided into forest lands including one of San 26-1 located in the same Ri on November 22, 1965 which was divided into other forest lands including one of 240, 496 located in the same Ri.

As for the forest land of 240, 496 , an ownership preservation registration with Lee ○-Sul as title owner of the property was completed under 'the Special Act on Title Transfer of Forest Land' on October 16, 1970, and thereafter an ownership transfer registration with Lee ○-Ho as title owner of that property was completed under 'the Special Act on Title Transfer of Land' on October 30, 1979 based on the land purchase agreement entered into on May 15, 1969.

(C)After examining whether the land is Pro-Japanese Collaborator's Property as defined in Article 2 Item 2 of the Special Act, the Commission, on February 28, 2008, made a decision that the land shall be confiscated on the ground of being Pro-Japanese Collaborator's Property pursuant to Article 3 Section 1 of the Special Act as of the date of December 29, 2005, the effective date of the Special Act, with the time of confiscation retroactively applied to when the land was acquired.

(D)Against the decision of confiscation, Lee ○-Ho, one of the petitioners, filed a suit (Seoul Administrative Court 2008 Ku-Hap 31482) to vacate the confiscation decision and thereafter, pending the suit, moved the court (Seoul Administrative Court 2008 A 2528) to file with the Constitutional Court for adjudication on the constitutionality of Article 2 Section 2 and Article 3 Section 1 of the Special Act, arguing that such retroactive legislations violate Article 13 Section 3 and Article 23 Section 1 of the Constitution and therefore are unconstitutional. When the administrative court consequently rejected that petitioners' request on January 15, 2009, the petitioners, on January 18, 2009, filed this constitutional complaint.

3. 2009Hun-Ba19

(A)Deceased Min ○-Suk (1858. 12. 12. ~ 1940. 8. 6, hereinafter 'Min ○-Suk') who had been conferred the title of viscount by the Japanese colonial government on October 7, 1910 for his contribution to the Japanese annexation of Korea, was appointed as advisor of Jungchuwon of the Japanese Government-General of Korea on July 6, 1934 and the vice president of such institution on October 13, 1939. On May 18, 1912, during the Japanese occupation, he was conferred the title of land, 2329 pyeong of grave yard located in 225 ○○-ri, Yeoju-eup, Yeoju-gun, Gyeonggi-do. After Min ○-Suk passed away on August 6, 1940, the title of land described above was inherited to his son, Min ○-Ki, and, then to his grandson, Min ○-Un on February 21, 1951.

The land was divided into the lands including grave yard 7,580 located in either 225-1 or 225-2 through 5 ○○-ri, Yeoju-eup, Yeoju-gun, Gyeonggi-do after which the petitioners of this case, Min ○-Hong and Min □-Hong jointly inherited those lands from Min ○-Un. As for the grave yard 7,580 located in 225-1 ○○-ri, Yeoju-eup, Yeoju-gun, Gyeonggi-do, the ownership preservation registration with the name of those petitioners as title owner of the property was completed and thereafter, on December 10, 1993, was divided into the grave yard 969 located in 225-1 ○○-ri, Yeoju-eup, Yeoju-gun, Gyeonggi-do and the grave yard 6,611 located in 225-6 ○○-ri, Yeoju-eup, Yeoju-gun, Gyeonggi-do.

(B) After examining whether the land is Pro-Japanese Collaborator's Property as defined in Article 2 Item 2 of the Special Act, the Commission, on August 13, 2007, made a decision that the land shall be confiscated pursuant to Article 3 Section 1 of the Special Act on the ground of being Pro-Japanese Collaborator's Property as defined in Article 2 Item 2 of the Special Act, as of the date of December 29, 2005, the effective date of the Confiscation of Collaborators' Property Act, with the time of confiscation retroactively applied to when the land was acquired.

(C) Against the decision of confiscation, the petitioners Min ○- Hong and Min □-Hong, filed a suit (Seoul Administrative Court 2007 Ku-Hap 43259) with the Seoul Administrative Court to vacate that confiscation decision and thereafter, pending the suit, moved the court (Seoul Administrative Court 2008 A 2712) to file with the Constitutional Court for adjudication on the constitutionality of the Special Act, arguing that such retroactive legislations violates Article 13 Section 3 and Article 23 Section 1 of the Constitution and therefore is unconstitutional. When the administrative court consequently denied that petitioners' request on January 7, 2009, the petitioners, on February 5, 2009, filed this constitutional complaint.

4. 2009Hun-Ba36

(A) Deceased Lee ○-Chun (1873. 1. 18. ~ 1936. 1. 11., hereinafter 'Lee ○-Chun') who was appointed to the Director of Foreign Affairs Bureau of Eujeoungbu (later changed into the cabinet in 1907) collaborated with Japan for its annexation of Korea by handling overall management of foreign affairs and trade. Later on October 1, 1910, right after the Japanese annexation of Korea, he was appointed Chaneu of Jungchuwon of the Japanese Government-General of Korea, and then appointed to Chameu of Jungchuwon on April, 21, 1921 when Jungchuwon was reorganized and served the Japanese Government of Korea until April 26, 1924.

On September 19, 1911, during the Japanese occupation, he was conferred the title of 836 of land located in 233 ○○-ri Opo-eup, Gwangju-si, Gyeonggi-do and the title of 2,963 of grave yard located in 234-3 ○○-ri Opo-eup, Gwangju-si, Gyeonggi-do. Later on July 25, 1919, he was also conferred the title of 25/30 of 21,079 of forest land located in San 67, ○○-ri Opo-eup, Gwangju-si, Gyeonggi-do. The ownership preservation registration with the name of Lee ○-Gu, one of the petitioners, as title owner of the properties described above was completed on June 28, 1985 and August 12, 1971 respectively. Thereafter, some portions of those properties were transferred to the heirs of Lee ○-Chun when those heirs and Lee ○-Gu accepted proposed adjustments of mediation in a suit filed for revocation of ownership transfer registration with regard to the aforementioned properties. After some of those heirs died, the properties were inherited by some of the petitioners and presently, five petitioners (petitioner #23 through petitioner #27 of the petitioners' list as referred in Appendix 1) including Lee ○-Gu jointly have ownership of the aforementioned properties in proportion to their respective share of the property.

(B) After examining whether the land is Pro-Japanese Collaborator's Property as defined in Article 2 Item 2 of the Special Act, the Commission, on May 23, 2008, made a decision the lands described in above paragraph shall be confiscated by the government on the

ground that those lands are Pro-Japanese Collaborator's Property as of the date of December 29, 2005, the effective date of the Special Act, with the time of confiscation retroactively applied to when the land was acquired.

(C) Against the decision of confiscation, the petitioners filed a suit (Seoul Administrative Court 2008 Ku-Hap 33914) to vacate that confiscation decision and thereafter, pending the suit, moved the court (Seoul Administrative Court 2008 A 3149) to file with the Constitutional Court for adjudication on the constitutionality of the Special Act, arguing that Articles including Article 2 Item 1 Mok Ka of the Special Act as retroactive legislations violate Article 13 Section 3 and Article 23 Section 1 of the Constitution and therefore are unconstitutional. When the administrative court consequently denied that petitioners' request on February 6, 2009, the petitioners, on March 3, 2009, filed this constitutional complaint.

5. 2009Hun-Ba247

(A) The fact that deceased Min ○-Hui was conferred the title of viscount by the Japanese colonial government in Korea on October 7, 1910 for his contribution to the Japanese annexation of Korea is the same as those described in the paragraph (1).

(B) Land #1 through #11 described in Appendix 2 were conferred to Min ○-Hui on October 30, 1917 according to the laws of the Japanese Government, after which ownership transfer registrations with the names of corresponding petitioners as title owners were completed, according to 'the Table 1 of ownership changes' of Appendix 3. Land #12 through #14 described in Appendix 2 were conferred to Min ○- Hui on October 1, 1911, and were transferred and registered with the names of corresponding petitioners as title owners by the same process.

(C) After examining whether those lands described in the above paragraph is Pro-Japanese Collaborator's Property as defined in Article 2 Item 2 of the Special Act, the Commission, on August 13, 2007, made a decision the lands described in above paragraph shall be shall be confiscated by the government on the ground that those lands are Pro-Japanese Collaborator's Property as of the date of December 29, 2005, the effective date of the Special Act, with the time of confiscation retroactively applied to when the land was acquired.

(D) Against the decision of confiscation, the petitioners filed a suit (Seoul Administrative Court 2007 Ku-Hap 43648) to vacate that confiscation decision and thereafter, while the suit was pending, moved the court (Seoul Administrative Court 2008 A 554) to file with the Constitutional Court for adjudication on the constitutionality of the Special Act, asserting that Article 2 through Article 5 of the Special Act as retroactive legislations violate Article 13 Section 3 and Article 23 Section 1 of the Constitution and therefore are unconstitutional. When that administrative court consequently dismissed that petitioners' request on August 28, 2009, the petitioners, on September 24, 2009, filed this constitutional.

6. 2009Hun-Ba352

(A) Deceased Cho ○-Keun (1876. 4. 8. ~ 1938. 5. 15., hereinafter 'Cho ○-Keun') filled various government posts including a general in the Japanese army for 23 years until he was appointed to Chameu of Jungchuwon of the Japanese Government-General of Korea on June 3, 1933 for his aggressive contribution to the Japanese colonial rule and wartime aggression and worked there until his death on May 15, 1938. During the period, he took the lead in establishing the Chosun and Great Asia Association, a group of people advocating Hwangdo (doctrine justifying the Japanese invasion on Asian countries) in March of 1934 with the support of the Japanese Government and the Japanese military while actively participating in advocacy of Naesunyunghwa and Hwangminhwaundong (Japanese assimilation policies to integrate Korean people into Japanese colonial rule).

Cho ○-Keun, for his aggressive contribution to the Japanese colonial rule and invasion as described above, received a Showadaereginyumjang, a commendation, on August 1, 1912, a Dyshowdaereginyumjang on November 10, 1915, Hun 3rd level of Seobojang on April 28, 1920, a Daejeong year 2 through Daejeong year 9 of Jeonyukjongkunginyumjang, a memorial medal for discharge from military service, on November 1, 1920, Hun 2nd level of Seobojangon April 21, 1920 and a Showadaereginyumjang on October 1, 1935. On October 1, 1935, he also won commendation for his service as a governmental official on the 25th anniversary of the Japanese Occupation of Korea and, a same one on April 27, 1920. Since he was conferred rank of Jeong 5 on April 27, 1920 he was continuously promoted up to a rank of Jong 3 on September 28, 1931.

Cho ○-Keun was conferred the title of land-seventy-eight Jeong, two hundred thirty four thousand pyeong, and six Mubo, one hundred eighty pyeong of a forest land-located in 1 San ○○-ri, Uiwang- myeon, Suwon-gun, Gyeonggi-do (later, the address of the 773.752 forest land at issue was changed into 1-1 San, ○○-dong, Uiwang-si). He also acquired 774 land located in Yesan-gun, Oga-myeon, ○○-ri, Chungcheongnam-do on May 3, 1926, 1,326 farmland located in 747of the same ri on July 15, 1915, 1,706 forest land located in 770 of the same ri on July 15, 1915, 1,937 farmland located in 771 of the same ri, on February 29, 1928. Ownership preservation registration for the lands described above with Cho ○-Keun as title owner of the property was completed between November 30, 1926 and February 29, 1928 and thereafter Cho ○-Hyeun, his son, inherited those lands upon his death on May 15, 1938. Later Cho ○-Moon, his grandson, inherited those lands after Cho ○-Hyeun's death on July 12, 1994.

(B)After examining whether those lands described in the above paragraph is Pro-Japanese Collaborator's Property as defined in Article 2 Item 2 of the Special Act, the Commission, on April 25, 2008, August 13, 2007, made a decision the lands described in above paragraph shall be shall be confiscated by the government on the ground that those lands are Pro-Japanese Collaborator's Property as of the date of December 29, 2005, the effective date of the Special Act, with the time of confiscation retroactively applied to when the land was acquired.

(C)Against the decision of confiscation, the petitioners including Cho ○-Moon filed a suit (Seoul Administrative Court 2008 Ku-Hap 29601) for vacation of that confiscation decision but the court denied it. In response, the petitioners filed an appeal (Seoul High Court 2009 Nu 7310) and thereafter, while the appeal was pending, moved the court (Seoul High Court 2009 A 269) to file with the Constitutional Court for adjudication on the constitutionality of the second paragraph of Article 2 Item 2 and Article 3 Section 1 of the Special Act, arguing that such retroactive legislations violate Article 13 Section 3 and Article 23 Section 1 of the Constitution and therefore are unconstitutional. When that High Court consequently denied that petitioners' request on October 20, 2009 (notice of such denial was delivered on October 29, 2009), the petitioners, on November 25, 2009, filed this constitutional complaint.

7. 2010Hun-Ba91

(A)Deceased Suh ○-Hun (1858. 3. 15. ~ 1943. 7. 31., hereinafter 'Suh ○-Hun'), for his collaboration with the Japan for its annexation of Korea, was appointed to Buchaneu of Jungchuwon of the Japanese Government-General of Korea on October 1, 1910 and later to Chameu of Jungchuwon on April 28, 1921 continuously holding the post until his death on July 31, 1943. Suh ○-Hun, for his aggressive contribution to the Japanese colonial rule and invasion, received various kind of commendations from Japanese Government of Korea: a Hangukginyumjangon August 1, 1912; a Dyshowdaereginyumjang on November 10, 1915; Hun 4rd level of Seobojang on June 27, 1922; Hun 3rd level of Seobojang on August 29, 1928; and Showadaereginyumjang on November 16, 1928; and a commendation for his service as a governmental official on the 25th anniversary of the Japanese Occupation of Korea. Since a rank of Jeong 7 was conferred on him on December 10, 1913, he was repeatedly promoted up to a rank of Jong 3 until November 2, 1928. Suh ○-Hun was conferred the title of forest land-three Dan, nine hundred pyeong and one Mubo, 30 pyeong located in 110 San, ○○-ri, Namsa-myeon, Yongin-gun, Gyeonggi-do (later this forest land was divided into 2,182 forest land located in 110-1 San, ○○-ri, Namsa-myeon, Cheoin-gu, Yongin-si). Thereafter, Suh ○-Won, the eldest son, inherited that land on July 31, 1943 and later Suh ○-Beom, his grandson, inherited that land on March 20, 1959. The ownership preservation registration with the name of Suh ○-Beom as title owner was completed on October 10, 1970 pursuant to 'the Special Act on Title Transfer of Forest Land' and thereafter an ownership transfer registration with the name of Sung ○-Pung, the petitioner, as owner of title of the land granted by will, was completed on November 8, 2000 after Suh ○-Beom died on May 26, 2000.

(B)After examining whether those lands described in the above paragraph is Pro-Japanese Collaborator's Property as defined in Article 2 Item 2 of the Special Act, the Commission, on July 9, 2008, made a decision the lands described in above paragraph shall be shall be confiscated by the government on the ground that those lands are Pro-Japanese Collaborator's Property as of the date of December 29, 2005, the effective date of the Special Act, with the time of confiscation retroactively applied to when the land was acquired.

(C)Against the decision of confiscation, the petitioner filed a suit (Seoul Administrative Court 2008 Ku-Hap 40806) to vacate that confiscation decision but the court denied it. In response, the petitioner filed an appeal (Seoul High Court 2009 Nu 12725) and thereafter, while the appeal was pending, moved the court (Seoul High Court 2009 A 339) to file with the Constitutional Court for adjudication on the constitutionality of the second paragraph of Article 2 Item 2 and Article 3 Section 1 of the Special Act, arguing such retroactive legislations violate Article 13 Section 3 and Article 23 Section 1 of the Constitution and therefore are unconstitutional. When the High Court consequently denied that petitioners' request on January 13, 2010 (notice of such denial was delivered on January 21, 2010), the petitioners, on February 17, 2010, filed this constitutional complaint.

B. Subject Matter of Review

1. 2008Hun-Ba141

Despite the fact that the petitioners assert that Article 2 through Article 5 of the Special Act is against the Constitution, given the facts of the case and contents of their constitutional complaint, it is appropriate to confine the subject matter of review to Article 2 Item 1 Mok 1, the second paragraph of Item 2, and the main text of Section 3 and Section 1 of the Special Act. Thus, the question presented to us is whether those provisions violate the Constitution.

2. 2009Hun-Ba14

Notwithstanding the petitioner contends that Article 2 Item 2 and Article 3 Section 1 of the Special Act are unconstitutional, the first paragraph of Article 2 Item 2 and the proviso of Article 3 Section 1 shall not be considered since those parts are neither argued for their unconstitutionality by the petitioner nor applicable to the facts of the case. The question presented to us, thus, shall be limited to whether the second paragraph of Article 2 Item 2 and the main text of Article 3 Section 1 of the Special Act violate the Constitution.

3. 2009Hun-Ba19

Even though the petitioners argue that the entire provisions of the Special Act including second paragraph of Article 2 Item 2 of that Act are against the Constitution, given the facts of the case and the entire contents of the petitioners' complaint, the subject matter of review shall be confined to the second paragraph of Article 2 Item 2 and the main text of Article 3 Section 1 of the Special Act. Therefore, the question presented to us is whether the second paragraph of Article 2 Item 2 and the main text of Article 3 Section 1 of the Special Act are against the Constitution.

4. 2009Hun-Ba36

The petitioners assert Article 2 Item 1 Mok 1, Article 2 Item 2 and Article 3 Section 1 of the Special Act are unconstitutional. However, it seems appropriate that the text of Article 2 Item 1 and the proviso of Article3 Section 1 of the Special Act protecting the bona fide 3rd parties should be excluded from the subject matters of review. Thus, the question presented to us is whether Article 2 Item 1 Mok 1, the second paragraph of Article 2 Item 2 and the main text of Article 3 Section 1 of the Special Act are unconstitutional.

5. 2009Hun-Ba247

Even though the petitioners argue that the entire text of Article 2 through Article 5 of the Confiscation Act is unconstitutional, based on the same grounds as referred in 2009Hun-Ba141, it appears reasonable to consider that the provisions subject to review should be limited to Article 2 Item 1 Mok 1, the second paragraph of Article 2 and the main text of Article 3 Section 1 of the Special Act. Thus, the question presented to us is whether those provisions are against the Constitution.

6. 2009Hun-Ba352

While the petitioners request us to consider whether the second paragraph of Article 2 Item 2 and Article 3 Section 1 of Special Act is unconstitutional, as we examine the foregoing cases, only the main text of Article 3 Section 1 rather than its entire text should be considered. Therefore, the provisions to be reviewed shall be confined to the second paragraph of Article 2 Item 2 and the main text of Article 3 Section 1 of the Special Act.

7. 2010Hun-Ba91

As the case above, the question presented to us is whether the second paragraph of Article 2 Item 2 and the main text of Article 3 Section 1 of the Special Act violate the Constitution.

8. Sub-conclusion

Therefore, the question presented to us is whether Article 2 Item 1 Mok 1 (hereinafter, the "Definition Provision"), the second paragraph of Article 2 Item 2 (hereinafter, the "Presumption Provision") and the main text of Article 3 Section 1 (hereinafter, the "Confiscation Provision") of the Special Act (hereinafter, collectively called "Instant Provisions") violate the Constitution. The Instant Provisions are as following:

[Provision at Issue]

The Special Act to Confiscate Pro-Japanese Collaborators' Property (revised by Act No. 7975 on September 22, 2006)

Article 2 (Definition) As used within this Act, except where otherwise specifically defined, or unless the context otherwise requires, the following terms, phrases, words and their derivations shall have the following meanings:

1."Pro-Japanese collaborators whose property acquired in the Japanese colonial period (1910-1945) are subject to the confiscation" (hereinafter, the "Collaborator") are persons who fall into one of the followings:

1)The person who conducted one of the actions described in Article 2, Item 6 through Item 9 of 'the Special Act on the Investigation of the Actions against Korean People as pro-Japanese Collaboration During the Japanese Occupation' (Cham-ui, assist secretary of the ministry, in Item 9 includes Chan-ui and Bu Chan-ui, judge and assist judge): provided, however, that such person described above shall not be considered as the Collaborator in the cases where such person thereafter resisted or returned the title of nobility or actively engaged in the independence movement and becomes recognized as such by the decision of the Commission under Article 4 of this Act.

The Special Act to Confiscate Japanese Collaborators' Property (revised by Act No. 7769 on December 29, 2005)

2."The property of the Collaborator"(hereinafter, the "Collaborator's Property") means the property which belongs to one of followings: the property acquired by a person for his/her collaboration with Japan in the period from the outbreak of the Russo Japanese war - which was the beginning of Japanese invasion into Korea - to August 15, 1945; such property inherited; or such property given by will or as a gift while the person given that property knew that the property had been rewarded for such collaboration. In these cases, the property of the Collaborator acquired in the period from the outbreak of the Russo Japanese war to August 15, 1945 shall be assumed as the property acquired as a reward for pro-Japanese collaboration.

Article 3(Confiscation of pro-Japanese Collaborator's property)

1)The title of the Collaborator's Property (also includes the Collaborator's Property used or occupied by a foreign embassy under the international treaties/agreements or occupied or administered by the State) shall be owned by the State if that title is acquired or given as a gift : provided, however, that the State shall not affect the rights on the Collaborator's Property of a bona fide third party when that third party acquires that rights on that property after paying fair compensation.

[Related Provisions]

(Intentionally omitted)

II. Arguments of Petitioners and Related Authorities

(Intentionally omitted)

[Related Case Laws]

(Intentionally omitted)

III. Review on Merit

A. Details of Confiscation Act Legislation

1.Act on Punishment of Anti-National Activities under the First Draft of the Constitution

(A) Enactment of Act on Punishment of Anti-National Activities

The most typical example of legislation for settlement of Japanese colonialism in our history is the Act on Punishment for Anti-national Activities (hereinafter, the "Anti-National Punishment Act"). The bill of the Anti-National Punishment Act based on Article 101 of the supplementary provisions of the Constitution passed the National Assembly on September 7, 1948 and was promulgated by Act No. 3 on September 22 of the same year. The entire text of the Anti- National Punishment Act is composed of thirty two Articles under which the Special Committee of Investigation of Anti-National Activities (hereinafter, the "Special Committee of Anti-National Investigation") investigates pro-Japanese and anti-national figures and sends them to the special public prosecutor's division to indict them for the decision of special panel of the court. The statute of limitation is two years from the date of promulgation of the Anti-National Punishment Act.

(B) Contents of Punishment of Anti-National Activities

The Anti-National Punishment Act prescribes the following: Any person who either aggressively collaborated with the Japanese government for its annexation of Korea or signed or conspired for the ratification of document or treaty violating Korea's sovereignty shall be sentenced to death or life imprisonment with forced labor and the entire or more than half of his/her property or inheritance shall be confiscated (Article 1); Any person who received an accolade from the Japanese government or was an Assembly member of the Japanese colonial government shall be sentenced to life imprisonment or imprisonment with forced labor more than 5 years and the entire or more than half of his/ her property or inheritance shall be confiscated (Article 2); Any person who maliciously killed or persecuted the independence activists and/ or their family members shall be sentenced to death, life imprisonment or imprisonment with forced labor more than 5 years and the entire or part of his /her property or inheritance shall be confiscated (Article 3); Any person who received an accolade from the Japanese government or served as vice president, advisor or Chameu of Jungchuwon shall be sentenced to either imprisonment with forced labor not exceeding 10 years or suspension of his /her civil rights for no more than 15 years and his/ her entire or partial property may be confiscated (Article 4); and any person who served as a public official with the position of higher than the 3rd level of Godeunggwan or the 5th level of Hun or worked as a military police officer or secret police shall not be appointed to be a public officer prior to the expiration of statute of limitation of this Act (Article 5), etc.

Since its first trial held on March 28, 1949, the special panel established pursuant to Article 19 of the Anti-National Punishment Act dealt with forty one cases: it sentenced one person to death penalty, one person to life imprisonment with forced labor, thirteen people to imprisonment with forced labor, eighteen persons to suspension of their civil rights; and delivered judgments making two persons exempted from incarceration and acquitting six persons. Two of the thirteen people sentenced to imprisonment with forced labor by the special penal were also sentenced the penalty of property confiscation.

However, the Anti-National Punishment Act was repealed by Act No. 176 on February 14, 1951 and cases pending at the time were regarded as being revoked on the effective date of the repeal. All judgments based on the repealed Act lost their effect from the date of the repeal pursuant to the supplementary provisions of the Act repealing the Anti-National Punishment Act.

2. Enactment of the Special Act

Many other countries with a history of experiencing colonial occupation, upon gaining independence, have aggressively investigated and punished those who collaborated with the foreign occupiers in order to recover the legitimacy of the newly established nation after independence and to promote social justice. On the contrary, in our country, not only was the number of cases dealt with under the Anti-National Punishment Act insignificant, but even judgments delivered by the special panel lost their effect, the settlement of past Japanese colonialism hardly effective. As social consensus was formed that the works for settlement of past Japanese colonialism had failed to achieve its purpose, a need to enact the Special Act visualized. Consequently, a draft bill of the Special Act confiscating the property of anti-national figures who aggressively collaborated with the Japanese colonial rule and committed terror and oppression on nationals, in order to realize justice and restore our national spirit, was proposed by 169 lawmakers from both sides of the 17th National Assembly on February 24, 2005, went through the review of the Legislation and Judiciary Committee on April 19, 2005 and a public hearing on June 17, 2005 and thereafter was passed by a vote of 155 in favor among attendees on December 8, 2005. The Special Act was proclaimed and enforced on December 29, 2005.

B. Review on the Instant Provisions

1. Structure of the Decision

We will examine the claims asserted by the petitioners as follows. Violation of the principle of clarity with respect to the Definition Provision; infringement on the petitioners' right to trial, due process and violation of principle of presumption of innocence with respect to the Presumption Provision; and, with respect to the Confiscation Provision, infringement on the petitioners' property rights for the reason of retroactivity, intrusion on the core content of the petitioners' property rights, violation of right to equality, violation of principle against creation of special social class, violation of the principle

against succession of the ancestor's title of nobility or accolade, violation of rule against guilt-by-association, infringement on the petitioners' right to trial and due process and violation of principle of double jeopardy.

2. Definition Provision

(A) Rule of Clarity

Notwithstanding that all statutory provisions restricting basic rights shall basically satisfy the requirement of the rule of clarity (10-1 KCCR 341, 95Hun-Ka16, April 30, 1998), the level of such requirement for each provision cannot be the same so that it may vary depending on the nature of the individual Statute or provision, uniqueness of each elements, backgrounds or circumstances of enactment. It is either impossible or substantially difficult to require legislation to arithmetically meet such requirement of the rule of clarity. Thus, it is inevitable that more or less general notions and terms will be used either in the Statute. Determination on whether the requirement of clarity is met shall be made by a decision whether a reasonable interpretation based on the legislative purpose of the provision at issue and its relationships with other regulations is possible. Even a statutory provision having vague connotations should not be deemed as a violation of the rule of clarity insofar as the contents of its text can be clarified by the judge's supplementary value judgment and such interpretation cannot be influenced by the personal preference of the person construing that provision (See 4 KCCR 78-79, 89Hun-Ka104, February 25, 1992; 17-2 KCCR 712, 721, 2004 Hun-Ba45, February 25, 1992).

(B)The Definition Provision, which defines a person who committed one of the acts described in Article 2 Item 6 through Item 9 (Chaneu and Buchaneu shall be included in the notion of Chameu defined in Item 9) of the Special Act on the Fact-Finding of Anti- National Activities under the Japanese Occupation as a "pro-Japanese collaborator," cannot be seen as vague. The petitioners, in particular, argue that the part of "person who aggressively participated in the

independence movement" of the proviso clause of the Definition Provision – a clause exempting a person who committed one of the acts above but who refused or returned the title of nobility or aggressively participated in the independence movement, with the decision of the Commission, from confiscation – is so vague that it violates the rule of clarity. However, the language of the "person who aggressively participated in the independence movement" has a literal meaning as the 'person who was enthusiastically and actively involved in the independence movement during the period of Japanese colonialism', and considering the structure of the provision and literal meaning, one can sufficiently figure out the meaning. Even if the proviso clause has vague connotations to some extent, this problem may be fully resolved when the proviso clause is construed upon the balanced understanding of other provisions as well as considering the legislative purpose of the clause and the enactment purpose of the Act. Thus, we do not find the language of the proviso clause not satisfying the requirement of clarity. Or at the very least, it appears that an ordinary person having a sound common sense and a general understanding of laws can generally figure out the meaning of the clause. Therefore, the Definition Provision does not violate the rule of clarity.

3. Presumption Provision

The Presumption Provision defines Pro-Japanese Collaborator's Property as property acquired by a person for his/her collaboration with Japan committed in the period from the outbreak of the Russo Japanese war to August 15, 1945, or such property inherited, or such property bequeathed or received as a gift with the knowledge that the property was a reward for such collaboration. Also, the Presumption Provision presumes the property of the pro-Japanese collaborator acquired during the period from the outbreak of the Russo- Japanese war to August 15, 1945 as property acquired as a reward for pro-Japanese collaboration. We will consider whether the Presumption Provision shifts the burden of proof onto either the pro-Japanese collaborators or their descendents (hereinafter, the 'Pro-Japanese Collaborators') and thus infringes on their right to trial and violates due process (notwithstanding the petitioners assert that the Presumption

Provision also violates the principle of presumption of innocence, we will not further review the issue because the existence of criminal guilt is irrelevant to the Presumption Provision).

(A) Burden of Proof and the Freedom of Legislative Policy-Making

The burden of proof, as a supplementary means, enables the judge to make a decision when the factual matters of a case are obscure, and the decision about who shall take the burden of proof belongs to an area where the legislature may exercise its the discretion in making that decision considering the pursuit of justice as the ideal of the judiciary, fair trial, the nature of issues disputed and access to relevant evidence (See, 19-2 KCCR 467, 177, 2005Hun-Ba96, October 25, 2007). Given this discretion of the legislature in its policy-making with respect to the burden of proof, our decision whether the Presumption Provision is unconstitutional depends on whether such discretion has been abused or deviated.

(B) Review of the Instant Case

(1) The Presumption Provision confiscating the properties conferred to pro-Japanese Collaborators for their collaboration with the colonial rule of the Japanese Empire and anti-national activities is intended to realize justice, restore our national spirit and to embody the constitutional ideal of the March First Independence Movement that resisted Japanese imperialism.

It seems highly probable that a person was in alliance with the Japanese imperialists if the person performed pro-Japanese and anti- national activities during Japanese occupation by either being part of the institutions established for colonial rule or being appointed to one of high-ranking government posts above Godeungmoongwan. In general, these positions play a significant role in being conferred property for contribution to Japanese colonialism in Korea and thus it is highly possible that the property acquired by that person while in the above- mentioned positions is Pro-Japanese Collaborator's Property. Moreover, because the Russo Japanese war was an aggressive war started by Japan for control over the Korean peninsula the result of which was our downfall to a Japanese colony, the legislature appears to have been reasonable when it set out the outbreak of the Russo Japanese war as the time when the Pro-Japanese Collaborator's Property started to be formed.

(2)The Korean government's effort to confiscate Pro-Japanese Collaborator's Properties, as a settling of the past, is being made after quite a long time after the liberation from Japanese occupation, during which, lots of materials on real estate ownership disappeared due to the outbreak of the Korean War. Given the specific historical events which shaped the way our nation is today such as historical reality of our people and social situation, we are much convinced about the necessity of the Presumption Provision. In other words, while it is difficult for the state to prove whether a certain property was acquired in return for collaboration with Japanese colonialism, it is highly probable that the person who acquired those properties or the descendents secure the relevant materials or know the details about how they have come to own the properties. As such, it cannot be strikingly unfair to make the acquirers or the descendants bear the burden of proving the circumstances that led to the acquisition of property.

(3)In brief, while there is a considerable need for a Presumption Provision, the scope of burden of proof born by the side of pro-Japanese collaborators pursuant to the Presumption Provision is not excessive for the following reasons:

Firstly, according to the Presumption Provision, it is the Commission that has to prove the fact that the person at issue is a pro-Japanese Collaborator and the property at issue was acquired during the period from the outbreak of the Russo Japanese war to August 15, 1945. Thus, the Presumption Provision does not entirely shift the burden of proof to the Collaborator's side.

Secondly, as we mentioned before, the Presumption Provision merely presumes the property of the pro-Japanese collaborator acquired during

a certain period in which violation of national sovereignty leading to Japanese rule was decided, namely, from the outbreak of the Russo Japanese war to August 15, 1945 as property acquired as a reward for pro-Japanese collaboration. Thus, even though presumed as such, the pro-Japanese collaborator can rebut the presumption at any time by proving that the property at issue was not the reward of pro-Japanese collaboration. By a normative standard, the presumption cannot be concluded final or irreversible in the course of sorting out the content and the scope of the Pro-Japanese Collaborators' Property.

(4)Moreover, it is quite practicable to implement the Presumption Provision harmoniously in compliance with all constitutional values, and the Commission actually appears to reasonably limit the scope of the property subject to the Presumption Provision, thus reducing the possibility of violating basic rights due to excessive application of the Presumption Provision. For example, the Commission excluded property acquired prior to the date one was appointed to Chameu of Jungchuwon from being subject to the Presumption Provision, even though the person had consecutively filled various government posts such as Dochamsa or Gunchamsa before that (so that there may be sufficient reason to regard the property acquired in this period as collaboration property). As for property of the person who was promoted to Cameu of Jungchuwon, property acquired when the person held a lower position was excluded from being subject to the Presumption Provision. Consequently, in many cases where property appeared to satisfy the requirements of the Presumption Provision, the Commission revoked the decision for initiating an investigation when it found through close examination that pro-Japanese collaboration could not be established (as of March 5, 2010, except for the cases under investigation, only 2,078 cases out of total 5,572 cases decided to be investigated were finally either determined to be confiscated or recognized as Pro-Japanese Collaborator's Property, while in 2,818 cases initiation of investigation was revoked). This shows that the Presumption Provision in its implementation has been reasonably applied under the Commission's rational interpretation.

(5)Even when a Pro-Japanese Collaborator's Property is not rebutted at the Commission stage and is decided to be confiscated, a remedial appeal- an administrative suit- against the confiscation decision is possible so that judicial correction is also sufficiently guaranteed. Even in the case where disposition authorities or the courts do not easily accept the rebuttal, so that the presumption is in fact regarded as final, we have to consider this as a consequence of those courts or disposition authorities not properly implementing the intent of the legislative setting forth the provision at issue to only have the legal effect of 'presumption.' It will surely be an excessive restriction on the legislative power if we, as a resolution of this problem, declare either that the legislature's exercise of its discretion in enacting the Presumption Provision is beyond its limit and abusive or that the statute at issue is unconstitutional. It does not comply with the principle of separation of powers for us to consider the enactment of a statute to be unconstitutional just because the implementation of that statute is not right or has errors. We do not agree with the assertion that the Presumption Provision is unconstitutional for the reason that it actually functions as a conclusive provision because that assertion is the same as the argument that this Court shall declare any statute unconstitutional whenever its implementation has faults.

(6)As we can identify from precedents of settling past colonialism of countries that experienced invasion and ensuing colonial rule of foreign countries including Nazi Germany and thereafter won independence, a lot of such legislations set forth provisions punishing the collaborators who committed anti-national activities and confiscating their property regardless whether it was acquired as a reward for their collaboration. This provided a sense of social justice that a collaborator's property or property acquired as a reward of collaboration should never be protected, and furthermore, sent a strong warning to future generations that even though a collaborators' property was partly acquired by their own genuine economic activities, such economic benefit shall not be enjoyed in a national order established by the community they betrayed.

In comparison, in the instant case, while the Presumption Provision shifts some portion of the burden of proof on the property owners in the form of presumption, the provision aims to limit the properties to be confiscated to those acquired as a reward for pro-Japanese collaboration by sufficiently guaranteeing the opportunity to rebut the presumption. Thus, the provision at issue appears reasonable and moderate compared with other countries' statutory provisions confiscating collaborators' property regardless whether it was acquired as a reward for their collaboration.

(7)Furthermore, given the legitimacy of settling past colonialism, the realization of social justice and true social integration, we shall give more weight to the public interests pursued by the Presumption Provision–promotion of justice, restoration of national spirit and constitutional ideal of the March First Independence Movement–than to the disadvantages shouldered by the collaborators.

Comprehensively considering the forgoing reasons, the necessity of the enactment of the Presumption Provision is considerable high while the burden of proof placed on the side of pro-Japanese collaborators is not excessive. Hence, we do not find the legislature violated the petitioners' right to trial or due process by misusing or abusing its discretion, just for the reason the pro-Japanese collaborators partially bear the burden of proof.

4. Confiscation Provision

(A) Whether the rule against retroactive legislation is violated

(1) Nature of the issue presented

Pro-Japanese Collaborator's Properties, notwithstanding the fact they were acquired as a reward for pro-Japanese collaboration, were certainly conferred pursuant to the relevant property laws of those days.

Therefore the enactment of a statute confiscating those properties amounts to a genuine retroactive legislation. Based on their consideration that the confiscation of pro-Japanese collaborators' properties might be disputed, the drafters of the first Constitution of Korea set forth Article 101 of the supplementary provision so that those properties could be properly confiscated through retroactive legislation. However, the present Constitution of Korea does not have such provision and rather Article 13 Section 2 states that "No person shall be deprived of … property rights by means of retroactive legislation." Thus the issue presented to us is whether the nature of the Confiscation Provision at issue as a genuine retroactive legislation complies with Article 13 Section 2 of the Constitution.

(2)Whether the Confiscation Provision violates the rule against retroactive legislation

A) Retroactive Legislation: General

Retroactive legislations can be divided into two: the first one takes its effect on the matter of fact or law already finalized; and the second one takes its effect on the matter of fact or law which is still pending. The latter, in principle, is permissible but in balancing between the public interests requiring retroactivity and the need for protection of confidence in law, the standpoint of protecting confidence limits the discretion of the legislature. In contrast, unless exceptional circumstances exist, the former shall not be permitted under the Constitution because government by the rule of law ensures public confidence in law and stability of the law. However, even in this instance, retroactive legislation may be permitted if: the people could have expected such retroactive legislation; the confidence in law to be protected is not so great due to uncertainty or confusion of legal status; the loss and damage on the parties are either nonexistent or nominal; the public interest justifying retroactive legislation is such a great one that it precedes the necessity of public confidence in law (See, 8-1 KCCR 51, 88, 96Hun-Ka2, February 16, 1996; 11-2 KCCR 175, 193-194, 97Hun-Ba76, July 22, 1999)

B) Review of the Instant Case

1) Preamble to the present Constitution explicitly sets forth that "we, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, shall uphold the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919 and....." Here, the spirit of 'the March First Independence Movement of 1919' as a historical and ideological basis of our Constitution is one criterion for the construction of the Constitution or other laws (See, 13-1 KCCR 676, 693, 99Hun-Ma2, March 21, 2001). The part of 'uphold the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919' of the preamble means that the existence of our present nation was based on the contributions and sacrifices of the independence activists against Japanese imperialism (See, 17-1 KCCR 1016, 1020, 2004Hun-Ma859, June 30, 2005) and furthermore, the spirit of the Provisional Republic of Korea Government denouncing Japanese colonial rule and pursuing our nation's independence is the foundation for the present Constitution.

Therefore, we find that it is our people's constitutional responsibility to restore national spirit, promote justice and pursue social integration by settling the period Japanese occupation through fact-finding of pro-Japanese collaborators' activities and publicly confiscating property acquired as a reward for those activities.

2) In addition, retroactive confiscation of Pro-Japanese Collaborators' Property is deemed to be the exceptional case where retroactive legislations could have been expected and the damage on stability of law can be tolerated under the spirit of our Constitution for the following reasons:

First, Pro-Japanese Collaborators' Property is property acquired for anti-national, pro-Japanese activities justifying their invasion and suppressing anti-Japanese independence movement in collaboration with Japanese imperialists that forcefully oppressed and illegally ruled our nation in violation of international law. Thus, from the perspective of pro-Japanese collaborators, they could have sufficiently expected that, given the anti-national characteristics of their acquisition of property, that it might not be possible for them to preserve such Collaborator's Property and pass it down to their descendants when thereafter our people gained independence from Japanese colonialism and established a nation inheriting national legitimacy.

Secondly, as we describe above, it is a value inherited in all of our Constitutions since the first draft and also our people's constitutional responsibility to restore national spirit, promote justice and realize the constitutional ideal of the March First Independence Movement against the Japanese imperialists by confiscating the Collaborator's Property. If so, the people as constituent power and as those who have been governed by the Constitution, settling of the Japanese colonial past including the confiscation of Collaborator's Property is a so called 'latent possibility' which could be converted into reality at any time.

Thirdly, due to the activities of pro-Japanese collaborators approving Ulsa treaty entered into between Japan and Korea for Japanese colonization, our ancestors not only lost the sovereignty of our nation but also suffered all sorts of hardships including being drafted into the Japanese military or being forced to serve the Japanese army as comfort women. They were also either deprived of or violated on their basic rights including the protection of life and body for reason of claiming self-determination or resisting the unjust rule of Japanese imperialism. However, a large portion of those sufferings have still not been relieved to this day when over half a century has passed after liberation from Japan. In addition, as we saw above, it is hard to say that the settling of the Japanese colonial past under the Anti-National Punishment Act has been effective. Thus, continuously has been raised to this day is a social demand that a strict historical and legal evaluation of pro-Japanese collaborators' anti-national activities be made so that social justice can be done. In other words, we can say that the task of settling of Japanese occupation, in particular the task of dealing with the property acquired as a reward of pro-Japanese collaboration remains a significant problem for our society. If so, given all the aforementioned discussions made in our society, one could have sufficiently expected that the confiscation of Collaborator's Property would become a serious issue resulting in the requirement of governmental confiscation of that property.

3) Meanwhile, the main reason for prohibiting retroactive legislation is to prevent people from losing confidence in law or suffering infringement of rights when matters of the past are arbitrarily regulated by law enacted by men in power thereafter even though those matters could have been be handled through legislation generally regulating those matters before they became an issue. However, as for most legislation on settling the past, general regulations prior to the date the matter became an issue are not probable. In the same vein, in a lot of legislations for correcting the past, retroactive legislations have been allowed.

For example, Article 101 of the supplementary provision of the first draft of our Constitution stipulated that 'the National Assembly drafting this Constitution may enact a special Act for the punishment of vicious anti-national acts committed prior to August 15, 1945 and thereafter the Anti-National Punishment Act was enacted in order to set forth severe punishment and confiscation of property against the persons who aggressively collaborated with the Japanese government for the Japanese annexation of Korea, the persons who signed or conspired for a treaty or a document invading our nation's sovereignty. In France which was occupied by Germany in the Second World War, the persons who served in the collaborationist Vichy government and pro-Nazi collaborators were retroactively punished.

4)Colonial rule and pillage by world powers that swept the human society in the last century was the product of rampant imperialism and fascism. Thus, the common efforts to settle such past made after overcoming colonial rule was a product of self-reflection of human history of civilization that punished collaboration and following of imperialism and fascism so that community could be protected and that fault and sufferings would not be repeated. The resolution and the introspection alert against the repetition of the same history in our community.

Therefore, the matter of confiscating Collaborator's Property as a device of settling our Japanese colonial past, given its historical context, is a national task taken as a very exceptional measure in our history, so that the concern that retroactive legislations may become frequent with this Court's holding of constitutionality of this particular retroactive legislation can be fully removed.

(3) Sub-conclusion

The Confiscation Provision, thus, amounts to a retroactive legislation but an exceptional case where people could sufficiently have expected such retroactive legislation. Furthermore, whereas the loss of confidence in law by the retroactive legislation is insignificant, the importance of public interest achieved by implementing the provision is so overwhelming that retroactive legislation is permissible. Therefore, we cannot conclude that the Confiscation Provision is unconstitutional only for the reason that it is retroactive legislation.

(B) Whether petitioners' property rights are infringed

(1) Legitimacy of legislative intent and appropriateness of the means

As mentioned above, the legislative intent of the Confiscation Provision is legitimate because, confiscation by the government of property of pro-Japanese collaborators acquired as a reward for their collaboration with the Japanese occupation and oppression on our people, intends to restore the national spirit, promote justice and realize the constitutional ideal of the March First Independence Movement against Japanese imperialism.

According to the existing property law including civil law, even those properties acquired as a reward for pro-Japanese collaboration may be protected as legitimate properties in our legal system so that the collaborators and their descendants may enjoy riches and honors for generations. This, however, is evidently contradictory to the existing Constitution declaring we uphold the spirit of the March First Independence Movement of 1919. In such case, if we rely solely on the interpretation and application of relevant provisions such as those

of civil law, handling of Collaborators' Property based on social justice and national spirit would face difficulties. Thus, there is a strong need to take special measures to prevent pro-Japanese collaborators and their descendants from taking benefit of those properties. The Confiscation Provision, which allows the government to expropriate those properties so that it can be used for persons recognized for their distinguished service for the independence of our nation (Article 30 of the Act on the Honorable Treatment of Persons of Distinguished Services to Independence), is a proper means to achieve the afore-mentioned legislative intents.

(2) Whether the instant provisions are least restrictive

A)When we examine the overall aspects of the Definition Provision and the Confiscation Provision, Pro-Japanese Collaborators' Property subject to confiscation through the Confiscation Provision is limited to the property of persons who committed one of the four activities described as a serious and clear collaboration among activities defined as pro-Japanese collaboration by the 'the Special Act on the Fact-Finding of Anti-National Activities under the Japanese Occupation' (hereinafter, 'the Anti-National Act'). These are the following: Signing, approving or conspiring any treaty invading the sovereignty of our nation such as Treaty for Japanese annexation of Korea or Ulsa Treaty (Article 2 Item 6 of the Anti-National Act); committing acts such as receiving the title of nobility 'for the contribution to Japanese annexation of Korea' or 'substantively supporting the Japanese Rule' (Article 2 Item 7 of the Anti-National Act); serving as a member of either the House of Peers or the House of Representatives of the Parliament of Japanese Imperialists (Article 2 Item 8 of the Anti-National Act); or serving as vice-president, advisor or Chamei of Jungchuwon of the Japanese Government-General of Korea (Article 2 Item 9 of the Anti-National Act). Furthermore, the provision at issue sets forth an exception where a person described above shall not be considered as a pro-Japanese collaborator in instances where such person thereafter resisted or returned the title of nobility or aggressively participated in the independence movement.

B)As aforementioned, while the Presumption Provision presumes that the property of the pro-Japanese collaborator acquired during the period from the outbreak of the Russo Japanese war to August 15, 1945 shall be presumed as Pro-Japanese Collaborators' Property, the collaborators' side can rebut the presumption anytime by proving that the property at issue was not acquired as an award for pro-Japanese collaboration.

C)In addition, the Special Act has a provision protecting a bona fide 3rd party who enters into a contract for the transaction of the Pro-Japanese Collaborators' Property and thus minimizes the harm on stability of law. Meanwhile, the Supreme Court made a decision where 'the 3rd party' prescribed in the proviso of Article 3 Section 1 of the Special Act includes not only the person who acquired the Pro-Japanese Collaborators' Property prior to the effective date of the Special Act but also a person who acquired that property after the effective date of that Act (See. 2008 Du 13491 delivered on November 13, 2008, the Supreme Court). Through construction of the Act as seen in this case law, the possibility of damaging the stability of law is likely to be reduced further.

D)While the wounds of Koreans compulsorily drafted into the military or forced to become comfort women inflicted by the cruel Japanese colonial rule continue to remain in our society, the claims for property redemption filed by the descendants of the Pro-Japanese Collaborators have persisted. Whereas most of the victims from Japanese occupation have died or been aged enough to either be ignored in our society or forced to become a neglected minority, the descendants of the Pro-Japanese Collaborators who regained the confiscated property through lawsuits, resold it in exchange for a huge amount of money and fled to foreign countries. Hence, the legislation of the Confiscation Provision appears to be the minimum means necessary to achieve the legislative intent of the Special Act which ultimately pursues social integration by forfeiting Pro-Japanese Collaborator's Property retroactively, realizing social justice and rectifying past injustices.

For the foregoing reasons, we do not find that the Confiscation Provision excessively and unnecessarily restricts property rights guaranteed by the Constitution.

(3) Proportionality of Legal Interests Concerned

Given the legitimacy of settling the past and the value of true social integration, the importance of the public interest the Confiscation Provision is seeking, restoring the national spirit and realizing the constitutional ideal of the March First Independence Movement, is enormous. Even though the petitioners' property rights may be restricted, the level of such restriction cannot be regarded to be severe considering the historic legitimacy of confiscation of the Pro-Japanese Collaborators' Property, reasonableness in limiting the property subject to confiscation and protection of the bona fide 3rd party. Thus, it is difficult to consider that the Confiscation Provision does not strike the balance of interests, therefore the Confiscation Provision is cannot be deemed in violation of proportionality between interests.

(4) Sub-conclusion

Therefore, we do not find that the Confiscation Provision infringes on the right to property. Moreover, the petitioners' claim that their rights to pursue happiness are violated has no merit.

Meanwhile, the petitioners assert that the Confiscation Provision violates the essential content of their property rights because it offers no compensation while depriving ownership. However, considering the legislative purpose of the Special Act which is realizing the constitutional ideal of the March First Independence Movement and social justice by forfeiting Pro-Japanese Collaborator's Property, we find that confiscation with no compensation rather complies with the constitutional ideal so long as that confiscation is not inconsistent with the rule against excessive restriction. Thus, we do not agree with the petitioners' assertion.

(1)Here, we examine whether the Confiscation Provision differently treats the petitioners based on their social status without any reasonable grounds.

A)The standard of review we apply to decide whether the right to equality is violated shall vary depending on the level of legislative policy-making power allowed. In the instances where either the Constitution particularly requires equality or the basic right relevant is severely restricted due to a discriminatory treatment, the legislative policy-making power shall be reduced and thus a strict standard of review must be applied (See. 98Hun-Ma363 delivered on December 23, 1999, 11-2 KCCR 770, 787).

Prohibition of discrimination based on social status is prescribed in the second sentence of Article 11 Section 1 of the Constitution and focuses on the ban on discrimination without any reasonable ground. However, that sentence does not require an absolute prohibition of different treatment in the instances stipulated in the sentence so that the legislative policy-making power is limited (See. KCCG 170, 2106, 2110, 2006Hun-Ma328, November 25, 2010). If so, the fact that the petitioners' status as descendents of pro-Japanese collaborators amounts to social status of the second sentence of Article 11 Section 1 of the Constitution does not make it into a case the Constitution particularly requires equality. Moreover, as reviewed below, governmental confiscation of Pro-Japanese Collaborators' Property is not a case where the prohibition of guilt-by-association is to be applied and there being no constitutional provision requiring those descendants to be equally treated in particular, we cannot find that the different treatment of those descendants warrants the application of a strict standard in reviewing whether the right to equality is violated.

In addition, the Confiscation Provision does not make all property of those descendants subject to confiscation but only the property which was acquired as a reward for their ascendants' pro-Japanese collaboration and thereafter inherited. If so, the Confiscation Provision does not belong to the circumstances where the basic right is severely restricted, and thus it does not warrant the application of a strict standard in reviewing whether the right to equality is violated.

Therefore, a relaxed standard of review shall be applied for the decision whether the differential treatment of the petitioners under the Confiscation Provision violates the petitioners' rights to equality.

B)As we acknowledged above, the Confiscation Provision is intended to realize social justice and restore our national spirit; with regard to the Collaborators' Property, it is contradictory to the idea of justice to ensure such property be possessed by either the pro-Japanese collaborators or their descendants; the properties subject to governmental confiscation are limited to only those of persons who committed one of the four activities described as a serious and clear collaboration among activities defined as pro-Japanese collaboration by the Anti- National Act: it is provided, that such person described above shall not be considered as a pro-Japanese collaborator in the cases where he/she thereafter resisted or returned the title of nobility or actively engaged in the independence movement; there is a provision protecting a bona fide 3rd party who has entered a contract for the transaction of those property. Given all the above grounds, even though the Confiscation Provision treats Collaborators' Property differently from the other property by subjecting it to confiscation, that treatment has reasonable grounds. Thus, it is difficult to conclude that the Confiscation Provision is arbitrary discrimination in violation of the principle of equality.

(2)Meanwhile, the petitioners contend that the Confiscation Provision is a dispositional statute and thus it is unconstitutional. The Constitution, however, does not have a provision particularly classifying a statute as a dispositional one applicable either to the individuals or to each incident nor has a provision expressly prohibiting the enactment of such dispositional statute. Thus, the sole fact that a particular provision is a statute applicable to either the individuals or each incident does not automatically make such provision unconstitutional

(See. 8-1 KCCR 51, 69, 96Hun-Ka2, February 16, 1996; 13-1 KCCR 367, 375, 99Hun-Ma613, February 22, 2001).

Therefore, the petitioners' contention that the Confiscation Provision is a dispositional statute and thus it is unconstitutional does not have merit. Furthermore, the Instant Provisions is to be generally applied and thus it is hard for us to consider such provisions as dispositional statutes. Therefore, we do not accept the petitioners' contention.

(D)Whether the rule against guilt-by-association is violated

Article 13 Section 3 of the Constitution provides that "no citizen shall suffer unfavorable treatment on account of an act not of his or her own doing but committed by a relative." This provision shall be applied to 'only instances where a disfavored treatment is made only based on the fact that the person committing an act at issue is his or her relative even though the act actually has nothing to do with that person' (See. 17-2 KCCR 785, 792, 2005Hun-Ma19, December 22, 2005).

In the instant case, the Collaborator's Property defined as property subject to governmental expropriation under the Confiscation Provision is limited to property acquired by a person for his/her collaboration with Japanese Imperialism or such property inherited or such property bequeathed or donated with the knowledge that it is Pro-Japanese Collaborators' Property. Thus, so long as property other than the Collaborator's Property, such as property acquired by the descendant by his/her economic activities or inherited property but not belonging to Collaborator's Property defined above, is not confiscated, governmental expropriation of the Collaborator's Property shall not be deemed as one of the instances where a disfavored treatment is made only based on the fact that the person committing an act at issue is his or her relative even though such act actually has nothing to do with the person whose property is confiscated. We, therefore, do not find that the Confiscation Provision is in violation of the rule against guilt -by-association stipulated by Article 13 Section 3 of the Constitution.

(E) Review on other arguments

(1)The petitioners contend that the Confiscation Provision creates a privileged class and recognizes the inheritance of awarded honors and decorations, both prohibited by the Constitution. On the contrary, the 'privileged class' of Article 11 Section 2 means a social class and its disapproval of inheritance of awarded honors and decorations means the denial of privileges derived from such awarded honors and decorations. Thus, it is difficult to conclude that governmental confiscation of the Collaborator's Property amounts to the creation of a social class or the recognition of inheritance of awarded honors and decorations.

(2)The petitioners also make an assertion that, even though governmental confiscation of the property under the Confiscation Provision is so similar to criminal confiscation that it amounts to 'punishment' of Article 12 Section 1 of the Constitution, no judicial procedure is provided, infringing on their rights to access to court guaranteed by Article 27 Section 1 of the Constitution and violating due process prescribed in the second paragraph of Article 12 Section 1. However, a procedure to rebut the decision of the Commission is provided under Article 21 and 23 of the Confiscation Act; procedural safeguards, filing an administrative suit or requesting of administrative review, are available; and the Commission's decision of governmental confiscation is only an administrative disposition not a confiscation as a punishment of criminal penalty under the Criminal Act–confiscation of 'a thing which is not the property of a person other than the criminal, or which was acquired by a person other than the criminal with the knowledge of its nature after commission of the crime may be confiscated if it is a thing which has been used or was sought to be used in the commission of a crime, a thing produced by or acquired by means of criminal conduct or a thing received in exchange for a thing mentioned above'. Therefore this does not require further review.

(3)The petitioners also argue that because the Anti-National Punishment Act was enforced in the past, the enactment and execution of the Confiscation Act is against the principle of double jeopardy. We, however, find that the principle of double jeopardy shall be applied to criminal punishment but that governmental confiscation under the Instant Provisions does not belong to criminal punishment. Therefore, the petitioners' argument has no merit.

IV. Conclusion

For the foregoing reasons, we find that the Instant Provisions do not violate the Constitution and hereby decide as the holding of the Court. All Justices joined this opinion, except for the concurring opinions of Justice Kim, Jong-Dae (Part V) and Justice Mok, Young-Joon (Part VI) with respect to the Confiscation Provision; opinion of partial limited unconstitutionality of Justice Lee, Dong-Heub and Justice Mok, Young-Joon (Part VII) with respect to the Presumption Provision; opinion of partial limited unconstitutionality of Justice Lee, Kang-Kook and Justice Cho, Dae-Hyun (Part VIII) with respect to the Confiscation Provision.

V. Concurring Opinion of Justice Kim, Jong-Dae

I join the majority opinion that the Instant Provisions do not infringe on the petitioners' property rights but I would like to write separately to reiterate my view that the Collaborator's Property shall not be property protected by the Constitution.

A. Critique on the Majority Opinion

1.The Constitution guarantees the right to property as a basic right. The right to property may be restrained but only in compliance with the principle of proportionality (Article 37 Section 2 of the Constitution), and expropriation, use or restriction of property for public necessity shall not be made unless it is prescribed by law and, in such instance, just compensation thereof shall be paid (Article 23 Section 3 of the Constitution). Furthermore, no person shall be deprived of his or her property right by means of retroactive legislation (Article 13 Section 2 of the Constitution). Thus, once recognized as a property right guaranteed by the Constitution, it shall be protected by the Constitution to the same extent as stated above.

2.In particular, given that the framers of the Constitution, in drafting Article 13 Section 2, did not employ any exception at all, the prohibition of retroactive legislation depriving a property right should be a value to be consistently and uniformly pursued with no exceptions. Thus, insofar as the Court interprets Article 13 Section 2 of the Constitution, which prohibits the deprivation of citizens' property right by retrospective legislation, to allow citizens to be deprived of their property rights by retroactive legislation when there are special reasons, it would certainly be a creation of a constitutional provision. This is neither an appropriate construction of the Constitution nor consistent with the constitutional doctrine of separation of powers because the Court would be creating a constitutional content contrary to the existing Constitution, in deviation of the only power delegated by the people which is to interpret the Constitution.

This is the most basic reason that I do not agree with the Court's opinion: The analysis of the Court's opinion which considers the Collaborators' Property as constitutionally protected property, but finding deprivation of such property by retroactive legislation not in violation of the Constitution, hardly overcomes logical contradiction. In order to overcome the logical contradiction, the majority relied on the approach that an expropriation of property by a genuine retroactive legislation may be allowed in very exceptional cases. In my view, however, this approach is nothing but a creation or an enactment of constitutional content rather than an interpretation of the Constitution, which violates the principle of separation of powers.

B. Constitutional Nature of Collaborator's Property

1.In the history of discourse on basic rights, the concept of inherent right, the right innately vested in human beings before the establishment of nations, was largely recognized. Nevertheless, these days, with modern constitutionalism generally adopted by most of the countries in the world, the decision on which basic rights should be constitutionally protected should be made according to the constitutional norms of each country. Property stipulated in the Constitution means property protected by 'our Constitution' and thus, the decision whether the Collaborator's Property is a constitutionally protected right to property requires us to firstly examine either the stand of the Constitution toward the Collaborator's Property or the relations between the Collaborator's Property and the Constitution.

2. It is common knowledge that the Constitution of the Republic of Korea was established upon our people's fight against and restoration over Japanese Imperialism. During the 36 years of colonial occupation since the Ulsa Treaty of 1905, our people persistently and fiercely carried on the independence movement. While it is undeniable that the Allied Forces played a role in defeating Japanese imperialists, the national capabilities and results displayed by the independence movement, into which a large number of our ancestors devoted themselves by sacrificing their lives and security, also played a crucial role in achieving independence.

Thus, the Constitution of the Republic of Korea is a product of history gained through the endeavors and noble sacrifice of our people who endured the period of brutal Japanese occupation. Accordingly, the first draft of the Constitution, in its preamble, explicitly declared that it upholds the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919. This movement was historically the largest national movement that resisted the Japanese imperialist occupation and declared independence, which resulted in the establishment of the Provisional Republic of Korea Government so that, thereafter, our people were able to systematically launch the national liberation movement. For the stated reasons, the fact that our Constitution provides that it upholds the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919 is a public declaration that the foundation of the Constitution is the spirit of self-determination and national liberation of the Provisional Republic of Korea Government which endeavored to overcome the Japanese imperialist occupation and pursued independence.

Given the spirit and tradition of the Constitution as well as the backgrounds in its establishment, property acquired as a reward of pro-Japanese collaboration and anti-national activities shall not be protected by the Constitution. The Collaborator's Property no doubt is 'property' of value to the pro-Japanese collaborators, but it shall not be protected by the 'property right' provision of our Constitution, a product of the fight against restoration over Japanese imperialism. Rather, it is fair to say that the Collaborator's Property is one that should to be settled by the Constitution because it was acquired as a reward for the contribution to the continuance and reinforcement of Japanese Imperialism and for oppression on our ancestors' devotion for the liberation of our people, which resulted in the blockade and delay of the establishment of the Constitution.

3.The first draft of the Constitution, in Article 15, prescribed that 'the property right is constitutionally protected but its content and limit shall be decided by statutes enacted by the legislature,' while Article 101 of the supplementary provisions of the Constitution provided that 'the National Assembly enacting this first draft of the Constitution may enact a special Act in order to punish a person for his/her vicious anti-national acts committed prior to August 15, 1945.' Thus, it can be concluded that the first draft of the Constitution recognized a property right as a constitutionally protected right but at the same time allowed a special Act to be enacted for dealing with the affairs and properties of pro-Japanese collaborators. In my view, given the basic spirit of the first draft of the Constitution explicitly stipulating that it upholds the independence spirit proclaimed all around the world through the March First Independence Movement of 1919 and the Provisional Republic of Korea Government, we must consider that the framers resolved the onerous problem of dealing with Pro-Japanese Collaborators' Property, by including the Collaborator's Property into Article 101 of the supplementary provisions of the Constitution rather than Article 15 of the right to property. To sum up, the Collaborator's Property is the property which the first draft of the Constitution saw as one not to be constitutionally protected.

In addition, even though the Constitution later amended does not retain such supplementary provision as the first draft of the Constitution with respect to Collaborator's Property, it is quite possible for the legislature to enact a statute confiscating the Collaboration Property unless there exists a normative standard that the problem of Collaborator's Property has been completed not to require additional efforts. This is because it is hard to say that the hostility toward the Collaborators' Properties since the framers drafted our Constitution has discontinued or changed, for later amended Constitutions have upheld the founding principle of the nation and spirit of the first Constitution, which were the ideological bases of the independence movement amid the fight against Japanese Imperialism.

Therefore, if a property acquired as a reward for pro-Japanese collaboration is intolerable to be protected by the Constitution due to its strong anti-national nature, the legislature may enact an exceptional legislation even under the amended Constitution.

The descendants who inherited the Collaborator's Property may assert that protection of such property is required based on values such as security of transactions and the principle of protection of confidence in law. The interest in preserving these values, however, cannot weigh more than maintaining the value and historical significance of the founding spirit of the new independent nation. I believe we should regard the nature of anti-nationality of original acquirers deeply rooted in the Collaborator's Property is inherited also when their descendants inherit such property, so long as the ownership is transferred with no payment of money and not by a causative act recognized by government.

C. Constitutional restrictions on governmental confiscation of the Collaborator's Property

However, the government shall abide by constitutional restraints in locating the Pro-Japanese Collaborator's Property and setting up the confiscation process thereof. Not every property of the pro-Japanese collaborator may be subject to confiscation under a special act, just for the reason it belongs to such collaborator. Taking account of the founding spirit of our nation and the first draft of the Constitution, the scope of Pro-Japanese Collaborators' Property has to be classified on the basis of fair and impartial criteria. Thus the Court, when reviewing whether the confiscation of the Collaborator's Property is constitutional, must examine whether the selection and confiscation process are reasonable, fair and justifiable and, to this extent, the remedy for the owners of such property is guaranteed through constitutional review.

D. Conclusion

In conclusion, the Instant Provisions are not against the Constitution because they are intended to confiscate Collaborator's Property which is not subject to protection as a constitutional right to property and hence it is not necessary for the Court to review whether the principle of proportionality is violated. It is sufficient for the Court to consider whether the properties subject to confiscation under the Instant Provisions belong to Pro-Japanese Collaborators' Property that warrant governmental confiscation. From this standpoint, the Instant Provisions do not appear to be against that constitutional restraint.

The Instant Provisions are closely related to the foundation and legal tradition of our nation, which requires that the Court take an approach beyond the existing theory of general civil law. The foundation and legal tradition of our nation are inherent themes of the Constitution and thus the Court may reach a proper conclusion only when its logic is premised on the underlying themes and backgrounds of the Constitution itself.

VI. Concurring Opinion of Justice Mok, Young-Joon

I agree with the majority that both the Definition Provision and the Confiscation Provision do not violate the Constitution but I write separately to reiterate a different basis for the conclusion with respect to the Confiscation Provision from that of the Court Opinion.

A. Critique on the Court Opinion

The Court Opinion finds that the Confiscation Provision amounts to a genuine retroactive legislation, but that some retrospective law can be allowed when such law, as an exception, is justified because, for example, people could have expected such retroactive legislation and whereas the loss of confidence in law by the retroactive legislation is insignificant, the importance of public interest achieved by implementing the provision is so overwhelming that retroactive legislation is permissible. This analysis is based on the case laws of the Constitutional Court that retroactive legislation may be permitted if: the people could have expected such retroactive legislation; the confidence in law to be protected is not so great due to uncertainty or confusion of legal status; the loss and damage on the parties are either nonexistent or nominal; the public interest justifying retroactive legislation is such a great one that it precedes the necessity of public confidence in law (See, 8-1 KCCR 51, 88, 96Hun-Ka2, February 16, 1996; 11-2 KCCR 175, 193-194, 97Hun-Ba76, July 22, 1999).

The framers of the Constitution, out of concern that the confiscation of Pro-Japanese Collaborators' Properties might be disputed, added Article 101 to the supplementary provisions of the first draft of the Constitution so that those properties could be properly confiscated through retroactive legislation. The current Constitution, however, has no such provision and Article 13 Section 2 of the Constitution which provides that "… no person shall be deprived of property rights by means of retroactive legislation" declares all retroactive legislation depriving a property right shall be forbidden whatever the reasons may be.

Thus, regardless of whether the deprivation of property by a retroactive legislation is desirable in a democratic country, the Court shall not be allowed to construe that in exceptional cases retroactive legislation depriving a property right is permitted, because this, exceeding the authority of the Court, amounts to a change of content in the Constitution. I, therefore, believe that the Court Opinion is not justified and that the case laws described above shall not be complied to.

B. Nature of the Confiscation Provision

As the Collaborator's Property was acquired as a reward for contribution to Japanese Imperialism and inherited thereafter, notwithstanding the fact it was lawfully acquired, the decision whether, normatively, Collaborator's Property should be conclusively protected by the Constitution as a property right should be made upon consideration of comprehensive circumstances such as the ideal of our Constitution and the situations at the time of the acquisition.

The preamble of the current Constitution provides that 'we, the people of Korea, proud of a resplendent history and traditions from time immemorial, should uphold the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919' which means that the existence of our present nation was based on the contributions and sacrifices of the independence activists against Japanese imperialism and furthermore, the spirit of the Provisional Republic of Korea Government denouncing the Japanese colonial rule and pursuing our nation's independence is a foundation for the present Constitution. Thus, property acquired as an award for the denial of our people and contribution to the Japanese occupation of Korea in violation of the spirit of the Provisional Republic of Korea Government contains anti-social standards.

In addition, the criminal code of the Daehan Empire (1897-1910), promulgated in 29 April, 1905, sets out crimes including treason (Article 190 through 192), rebellion (Article 195), treason resorting to foreign power and destruction of national sovereignty (Article 200). Even though such criminal code was abolished by Item 11 of Regulations of the Japanese Government General of Korea on March 18, 1912, the abolition only means a prohibition of its application on account of the illegal occupation by Japanese Imperialism, the normative effect of which has implicitly remained. Accordingly, the collaborations and anti-national activities of pro-Japanese collaborators amounts to a crime of treason and thus their properties acquired as a reward for such collaboration should be regarded to be associated with serious criminality.

Likewise, we should conclude that the criminality or anti-nationality was inherent in the Collaborators' Property at the time of acquisition and that criminality has persisted even up to now, as our country has failed to officially settle the past, unlike other countries with similar experiences. Thus, we cannot say that the facts and legal rights pertaining to settling ownership of Collaborators' Property have finalized. Conclusively, the Confiscation Provision, which prescribes confiscation of Collaborators' Property under certain requirements, is not a genuine retroactive legislation but a quasi-retroactive legislation effective on ongoing facts or legal rights.

C. Whether the Confiscation Provision is unconstitutional

While quasi-retroactive legislation is basically allowed by our Constitution, such legislation must comply with the constitutional restriction requiring that public interest in having a retroactive legislation has to be more important than the interest in protecting confidence in law. In the instant case, as we examined above, the great public interest that justifies the Confiscation Provision is far more important than the interest in protecting the confidence in law.

Therefore, I do not find that the principle of protection of confidence in law required by the Constitution is violated by the Confiscation Provision and hence cannot be deemed unconstitutional just for being quasi-retroactive legislation.

D. Sub-Conclusion

For the stated reasons, I would conclude that the Confiscation Provision is a quasi-retrospective legislation not in violation of the Constitution.

VII.Opinion of Justices of Lee, Dong-Heub and Mok, Young-Joon: Partial limited Unconstitutionality

We do not agree with the majority and thus would like to reiterate as following the reasons that the Presumption Provision is unconstitutional as far as the part of 'acquired' of the Presumption Provision is interpreted

to include property acquired before 1904 but recorded as acquired thereafter through the land survey of 1912.

A. System of land ownership survey

Our modern system of land ownership was established when the Japanese colonial government started to file up the land survey records, which thereafter was approved as the cause of original acquisition by the Republic of Korea and inherited by the current system of the Constitution. In other words, once the survey was finalized under Article 15 of the Chosun Land- Survey Regulations (Item 2 of Regulation on August 13, 1912) for the owners of lands and under Act 8 of the Chosun Forest-Survey Regulations (Item 5 of Regulation on May 1, 1918) for the owners of forests, the titles of those lands and forests were granted as originally acquired (64 Da 1508 delivered on November 30, 1965, the Supreme Court; 83 DaKa 1152 delivered on January 24, 1984, the Supreme Court).

Meanwhile, the above survey was a process where, during the conduct of land readjustment plan by Japanese Imperialism, Korean people were required to register land already owned by them. This means the lands or forests acquired before the land survey were recorded as acquired after 1912 or 1918, regardless of the actual time of acquisition. Thus, the survey merely shows ownership of lands at the time of that survey conducted in 1912 or 1918, but by no means offers accurate evidence of when that land was actually acquired.

B. Problem of the Presumption Provision

The Presumption Provision provides that 'the property that shall be assumed as the property acquired as a reward for pro-Japanese collaboration is the property acquired by that collaborator in the period from the outbreak of the Russo Japanese war to August 15, 1945.' Thus, presumption is made when acquisition occurred during the period from the outbreak of the Russo Japanese war to August 15, 1945. As a result, even land acquired before that land survey in 1912, and in no relation with pro-Japanese anti-national activities, is likely to be presumed as Pro-Japanese Collaborator's Property under the Presumption Provision. For example, the land that had been owned for hundreds of years even prior to 1904 can be presumed as acquired at the time of that survey to be Collaborator's Property.

In response to this assertion, the majority argue that the collaborators may avoid confiscation by rebutting that presumption by proving that the property at issue was not acquired as a reward for pro-Japanese collaboration. However, this ignores the reality of court proceedings because, in order to avoid confiscation, the collaborator has to prove that the property at issue was actually acquired prior to 1904. But the modern system of land ownership was established when the Japanese colonial government started to file up the land survey records, which means that there was no public notice of land ownerships before the land survey. Thus, it is almost impossible for those collaborators to meet the burden of proof in order to rebut the presumption of Collaborator's Property because: it is unlikely that there exists any document or witness for proving facts that occurred 60 or 100 years ago; even if there are, it would be difficult to use as effective evidence because either the document would have been severely destroyed or the witness would have not have clear memories; it is not easy to rebut that presumption only with other circumstantial evidence, such as the fact that a grave yard of ancestors was located in the land or that the address written in the booklet of family tree is the same one of the land at issue. As a result, it is quite probable that the pro-Japanese collaborators or their heirs will be deprived of their properties that are totally unrelated to the Collaborator's Property.

C. Sub-conclusion

Insofar as the part of 'acquired' of the Presumption Provision is interpreted to include 'property acquired through the land survey of 1912,' resulting in the confiscation of property unrelated to Collaborators' Property, the Presumption Provision is in violation of the principle of least restrictiveness and does not strike the balance between the interests concerned, violating the rule against excessive restriction and infringing on the property right of the pro-Japanese collaborators or their heirs, and thus is unconstitutional.

For the foregoing reasons, the Presumption Provision is unconstitutional as far as the part of 'acquired' of the Presumption Provision is interpreted to include property acquired through the land survey.

VIII.Opinion of Justices Lee, Kang-Kook and Cho, Dae-Hyun: Partial Unconstitutionality

We find that the Confiscation Provision violates Article 13 Section 2 of the Constitution prohibiting the deprivation of property right by retroactive legislation and thus write separately to reiterate the basis of the opinion.

A. Necessity of confiscation of the Collaborator's Property

The Collaborator's Property defined under the Confiscation Act is property acquired by a person for his/her collaboration with Japan committed in the period from the outbreak of the Russo Japanese war to August 15, 1945, or such property inherited, or such property bequeathed or received as a gift with the knowledge that the property was a reward for such collaboration.

Meanwhile, given that the Republic of Korea, in the preamble of the Constitution, declares that it upholds the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919, it is necessary for social integrity that we punish the group of persons who collaborated with Japanese imperialism and confiscate Collaboration Property so that we can settle the past and restore national spirit.

B.Nevertheless, even though that historical, social and ideological need has never been greater, the aforementioned task shall be conducted in a way in compliance with the Constitution, the supreme law in our nation.

C.The majority concluded that the Confiscation Provision amounts to a genuine retroactive legislation, but as the preamble of the Constitution declares that it upholds the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919, there is a constitutional obligation to settle the Japanese colonial past. Also this is an exceptional case where people could have expected such retroactive legislation and whereas the loss of confidence in law by the retroactive legislation is insignificant, the importance of public interest achieved by implementing the provision is so overwhelming that retroactive legislation is permissible. Thereby it concluded that the Confiscation Provision is not unconstitutional just for the reason that it is retroactive legislation.

D.However, the Confiscation Provision is in violation of the express text of Article 13 Section 2 of the Constitution because it amounts to a deprivation of property by genuine retroactive legislation.

1. First of all, through the history of our Constitution even prior to its first draft, there has been a common and universal recognition that a separate constitutional basis must be required for punishment, deprivation of property right and restraint on voting right by retroactive legislation, because these violate the basic rights protection by the Constitution or general principle of law.

Therefore, even though statutes to punish pro-Japanese collaborators, confiscate Pro-Japanese Collaborators' Property and restrict their citizen's right were enacted and executed during the period of first draft of the Constitution, that was possible because Article 101 of the supplementary provisions of the first draft of the Constitution which provided that "the legislature enacting this Constitution may enact the special Act to punish vicious anti-national activities committed before August 15, 1945."

In addition, the supplementary provision of the Constitution fourthly revised on November 29, 1960 provided that "a special statute can be enacted for: the punishment of those who committed either election fraud, corruption or wrongful act such as killing and inflicting injuries against people resisting such election fraud or corruption with regard

to the election of President and Vice-president held on March 15, 1960; the restriction on citizen's right against those who committed distinguishable anti-democratic acts prior to April 26, 1960 by using his/her position; administrative or criminal disposition against those who accumulated property prior to April 26, 1960 in wrongful ways by using his/her position or power." Based on this provision, the legislature confiscated wrongfully accumulated properties by enacting special acts including the Special Act on Treatment of Illegally Accumulated Property.

2.Thereafter, for the first time in the history of our Constitution, provisions expressly prohibiting the restraint of voting rights or deprivation of property by retroactive legislation were set out: the Article 11 Section 1 of the Constitution fifthly revised on December 26, 1962 provided the rule against retroactive punishment; and Section 2 of the same Article prescribed that "no citizen shall be restricted on his or her voting right or deprived of his or her property right by retroactive legislation."

The reason for the newly added provisions was the determination of the constituent power to absolutely prevent voting right restriction or property deprivation by retroactive legislation in the future, to correct wrongful aspects of our history of constitutional government in which political or social retaliation had been ceaselessly repeated by way of retroactive legislation restricting or depriving the basic rights of citizens, especially voting rights and property rights in the period from the April 19 Democratic Revolution in 1960 through the May 16 Military Coup in 1961.

These provisions, thereafter, have constantly remained in our Constitution almost the same with slight changes in the location and language expression.

3.For the forgoing reasons, Article 13 Section 2 of the Constitution is a direct statement of prohibition declaring that voting right restriction or property deprivation by retroactive legislation shall not be allowed under any circumstances. The constitutional significance of the provision,

thus, is a declaration of a constitutional prohibition that even though voting rights and property rights, if necessary, may generally be restricted by statutes under Article 37 Section 2 of the Constitution, such restriction or deprivation by retroactive legislation is constitutionally prohibited pursuant to Article 13 Section 2 of the Constitution.

Hence, it is a clear violation of that constitutional provision to confiscate property by retroactive legislation even though it is Pro-Japanese Collaborators' Property acquired by pro-Japanese collaboration and anti-national activities.

4.The majority, based on case laws including 96Hun-ka2(1996. 2. 16) which reasoned that a restraint on basic rights by retroactive legislation may be allowed in exceptional cases, argue that the Confiscation Provision would also amount to such exceptional circumstances and thus is not against the Constitution. However, given factors such as Article 13 Section 2 and its relevant legislative history, voting right restriction or property deprivation by retroactive legislation is expressly prohibited by the Constitution itself, absent a special provision of the Constitution such as a supplementary provision, such restriction or deprivation by retroactive legislation is not allowed. Thus, under the current Constitution where there is no special provision of the Constitution such as a supplementary provision, even though the Confiscation Provision is for settling or arranging a historically exceptional circumstance, we cannot help saying that it is a violation of the Constitution as far as it is a property deprivation by retroactive legislation. In our view, if the Court, as the majority opinion, construes the current Constitution to allow a property deprivation by retroactive legislation in exceptional circumstances, it amounts to an actual revision or distortion of constitutional provision, which goes far beyond the scope of constitutional interpretation.

5.In conclusion, governmental confiscation of Collaboration Property will not be possible until a separate constitutional ground is provided likewise: Article 101 of the supplementary provisions of the first draft of the Constitution enabled the Special Act on Anti-National Punishment to be enacted; and the supplementary provision of the

Constitution fourthly revised on November 29, 1960 enabled the Special Act on Treatment of Illegally Accumulated Property to be enacted.

6.Furthermore, we examine another part of the majority's opinion asserting that, given that the Republic of Korea, in the preamble of the Constitution, declares that it upholds the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919, it is a constitutional obligation to settle the past and restore national spirit by confiscating Pro-Japanese Collaborators' Property. Reasoning of this assertion is not clear but, if the tenor is that legal effects of basic ideologies or principles explicitly prescribed in the preamble of the Constitution is superior to that of Article 13 Section 2 of the Constitution and thus retroactive deprivation of the Collaboration Property can be allowed by the founding principles of the preamble, despite Article 13 Section 2 of the Constitution, this is unreasonable.

Of course, the part in the preamble "upholds the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919," that declares the founding principles may constitute a criterion for constitutional or statutory interpretation. But basically, founding ideology or basic principles cannot help being specified and constitutionally realized by individual provisions of the main text of the Constitution. Hence, we believe the Court, in its interpretation of individual provisions of the Constitution, should not construe a provision contrary to its text by insisting on historical or ideological significance of founding ideology or basic principles declared in the preamble of the Constitution.

Therefore, the majority's interpretation of Article 13 Section 2 in contrast to the text by way of giving priority to the part "upholds the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919," in the preamble, is putting the cart before the horse.

Moreover, if we look at the language of that preamble itself, it is not interpreted as connoting that Collaboration Property must be confiscated without fail even by retroactive legislation not allowed by the Constitution.

E. Sub-conclusion

For the reasons above stated, the Court should declare that the Confiscation Provision constitutes a property deprivation by retroactive legislation violating Article 13 Section 2 of the Constitution and thus is unconstitutional.

Justice Lee, Kang-Kook (Presiding Justice), Lee, Kong-Hyun (unable to sign and seal due to retirement), Cho, Dae-Hyun, Kim, Hee-Ok (unable to sign and seal due to retirement), Kim, Jong-Dae, Min, Hyeong-Ki, Lee, Dong-Heub, Mok, Young-Joon, Song, Doo-Hwan

[Appendix 1] list of names of petitioner: intentionally omitted
[Appendix 2] list of lands and forests: intentionally omitted
[Appendix3] list of backgrounds of acquisition and ownership changes: intentionally omitted

31Mar11 - KOR

Confiscation of Property Awarded for Pro-Japanese Collaboration During Japanese Occupation Case

[Source: Constitutional Court of Korea.]

Judicial Decision
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