친일재산의 토지를 취득한 선의의 제3자

Abstract

The State may nationalize pro-Japanese collaborators’ property which pro-Japanese and anti-national collaborators acquired during the Japanese colonial rule of Korea pursuant to “the Special Act on Asset Confiscation of Pro-Japanese and Anti-national Collaborators to the State (hereinafter referred to as “the Special Act”)” enacted and enforced on December 29, 2005. However, the proviso to Article 3 (1) of the Special Act stipulates that “the right of the third party who acquires in good-faith or in return for adequate consideration can not be harmed.” Therefore, in case where the descendants of pro-Japanese and anti-national collaborators sell a plot of land which is pro-Japanese collaborators’ property to the bona-fide third party, that plot of land can not be redeemed by the State, in order to protect the third party who acquired it in good faith. However, the state may redeem the sales price that the descendant received from the third party as unjust enrichment. The Civil Code of Korea does not acknowledge the bona-fide acquisition of real estate since it does not adopt the principle of credibility of real estate. Nonetheless, the proviso to Article 3 (1) of the Special Act acknowledged the bona-fide acquisition of real estate. This thesis compares and analyzes the system of the German Civil Code which acknowledged the bona-fide acquisition of real estate and the provision of the Special Act of Korea. Article 892 of the German Civil Code requires for the bona-fide acquisition of real estate the following elements such as acquisition by legal transaction, good-faith, acquisition from a person who does not have a right, inaccuracy of the Land Registry, no objection and etc. On the other hand, the proviso to Article 3 (1) of the Special Act of Korea requires the elements of bona-fide, the third party, acquisition, payment of adequate consideration and etc. Through the comparison of the above two systems, this thesis purports to point out the necessity for the adoption of a bona-fide acquisition of real estate by the Civil Code of our country and the issues arising from the system of bona-fide acquisition of real estate under the Special Act.