토지(土地)및 임야사정(林野査定)의 법적성격(法的性格) -원시취득론비판(原始取得論批判)- = Legal Nature of the Official Assessment of the Land and Forestland

일제강점기 토지·임야사정의 법적 성격과 소유권 확정을 분석했다.

During the Japanese occupation period, the Japanese colonial government carried out the task of the official assessment and the determination of ownership on the land and the forest land of the Korean peninsula in accordance with the 『Land Assessment Ordinance』 and the 『Forest Land Assessment Ordinance』. In relevant cases, the Supreme Court of Korea has understood the above ownership determination as a ground of original acquisition.

Meanwhile, the 『Special Act on the Reversion of Pro-Japanese Collaborators` Property』, enacted in 2005, prescribes that the property acquired between 1904 and 1945 by the pro-Japanese collaborator is presumed to be the reward for collaboration and that it should be reverted to the State unless the presumption is rebutted. Against this backdrop, whether or not the ownership determination, which has been understood as a ground of original acquisition, should also be presumed to be the reward for collaboration has become a significant issue.

This article argues that the ownership determination should not be understood as a ground of the initial creation of ownership, but rather as an administrative confirmation merely ascertaining ownership already in existence. Viewing it as an endowment of the initial ownership contradicts with the dominant stance of the recent historical research that the land ownership had already existed long before the above assessment and the determination process took place. The contrary viewpoint on which the current original acquisition theory rests is based on the colonial historical perspective that denies the pre-colonial property regime.

Considering inappropriateness of this perspective, the theory of original acquisition needs to be abandoned.