Constitutional Court Rules "US Military Government Ordinance Nullifying Transactions with Japanese and Seizing Property Is Constitutional"

On the 28th of last month, Yoon Nam-seok, Chief Justice of the Constitutional Court, and the Constitutional Court Justices sat in the Grand Bench of the Constitutional Court in Jongno-gu, Seoul, to deliver the judgment on the constitutional complaint case filed against the High-ranking Officials' Crime Investigation Agency (Gong-su-cheo). Photo by Kim Hyun-min kimhyun81@

[Asia Economy Reporter Kim Daehyun] The Constitutional Court has ruled that the provision of the United States Army Military Government in Korea Ordinance (hereinafter referred to as the US Military Government Ordinance), which invalidated property transactions of Japanese residents in Korea just before Korea's independence in 1945, is constitutional.

On the 3rd, the Constitutional Court announced that it unanimously decided the constitutionality of the main text of Article 4 of Ordinance No. 2 and the first part of Article 2 of Ordinance No. 33 of the US Military Government Ordinance, which concern "Japanese nationals," rejecting the constitutional complaint that argued these provisions violated the principle of non-retroactivity.

The petitioners filed a lawsuit demanding the return of unjust enrichment, claiming that Ulsan Metropolitan City Jung-gu was occupying and using about 900㎡ of land in Jung-gu, Ulsan, which they had won at auction in November 2016, due to road paving and other reasons.

However, Jung-gu countered their claims by citing the US Military Government Ordinance. According to Jung-gu, the previous owner of the land purchased by the petitioners acquired the land from a Japanese person on August 10, 1945, and completed the registration of ownership transfer on September 7 of the same year.

However, Article 4 of Ordinance No. 2, promulgated on September 25, 1945, invalidates property rights transfers made after August 9 of that year, and Article 2 of Ordinance No. 33, promulgated on December 6 of the same year, stipulates that all property of Japanese nationals after August 9 is acquired by the US Military Government.

Furthermore, the first agreement between the Republic of Korea and the United States, signed on September 11, 1948, stipulated that the property confiscated by the US Military Government from Japanese nationals would be transferred to the Korean government.

In addition, Jung-gu argued, "According to the Special Measures Act on the Disposal of Confiscated Property, property for which no sales contract was concluded by December 1964 was nationalized free of charge," and claimed that the petitioners succeeded to state-owned property from persons without ownership rights.

In response, the petitioners filed a constitutional complaint, arguing that the relevant provisions of the US Military Government Ordinance were enacted retroactively to confiscate Japanese property and transactions made before the promulgation, violating the principle of non-retroactivity (Article 13, Paragraph 2 of the Constitution).

However, the Constitutional Court did not accept their claims. It stated that the retroactive legislation of the provisions in question aimed to freeze all property as it was at the time when Japan's defeat was a fait accompli and to transfer it to the future Korean government to be established.

In fact, August 9, 1945, was the date when the US Army Air Forces dropped an atomic bomb on Nagasaki, effectively ending World War II, and the acceptance of the Potsdam Declaration, in which the Allied leaders demanded Japan's unconditional surrender, was a fait accompli.

The Constitutional Court added, "The public interest in preserving and transferring the property accumulated by Japanese who entered Joseon under the illegal Japan-Korea Annexation Treaty is far more significant than the request for protection of trust by Japanese residents in Korea who intended to freely dispose of private property on the Korean Peninsula or those who purchased property from them immediately after Japan's defeat."

This content was produced with the assistance of AI translation services.