A legal minefield for Korean reunification

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A legal minefield for Korean reunification By Andrei Lankov    Jul 30, 2011 A few days ago, the South Korean media reported an interesting and peculiar legal case: for the first time since the division of Korea, North Koreans have applied for their legal share of their father's inheritance - and won the case. Born in 1933, the father escaped North Korea during the Korean War in the early 1950s, taking his older daughter but leaving behind his wife and five other children. In South Korea he eventually remarried, had four more children with a new wife and established a successful private clinic. He died in 1987, leaving the equivalent of US$10 million. With the help of their sister, his children from his first marriage demanded their share of his estate - even though they reside in North Korea. Genetic tests confirmed that they were indeed   children of the deceased businessman and finally their property rights were officially recognized by Seoul Municipal Court. It is remarkable that the claimants still remain in North Korea, even though they established communication with their biological sister, thus breaking the North Korean regulations which ban any unofficial interaction with the South (it is not clear to which extent their interaction with the South is controlled and approved by the North Korean authorities). This case is but the first drops of rain that precede a possibly devastating thunderstorm. The division of Korea has created the potential for a great number of highly complex legal cases related to property rights. This is essentially a minefield and it's sad that nobody seems to take this issue seriously enough. Nobody knows when unification will happen. Right now, the probability of unification seems remote, but appearances can be misleading. Who, after all, would have predicted in 1986 the coming unification of Germany? In the current climate there is little doubt that unification can only be achieved under the auspices of Seoul (talk of negotiated unification through the gradual fusion of two states seems to be another exercise in wishful thinking). If the North is ever to be absorbed into the South, the most politically explosive of all property issues will be that of the land property rights. In the spring of 1946, the nascent North Korean regime conducted a land reform. According to the 1946 Land Reform Law, the maximum amount of land that could be privately held was limited to 5 hectares. Anything above this was confiscated without compensation and then redistributed amongst less wealthy farmers. Eventually, in the late 1950s, the state took all land from the farmers, making them join the agricultural cooperatives which were state-owned and state-managed farms in all but name. Nonetheless, the 1946 land reform created the legal basis for all subsequent reconstructions. People whose landholdings were taken over by the state in 1946 were officially branded "landlords". In North Korea this meant that not only these people but also their descendents were subjected to many kinds of discrimination. For example, people of such suspicious family backgrounds cannot be accepted to prestigious colleges or reside in major cities, they are not eligible for any managerial positions. However, only a minority of these landlords suffered this fate. The majority made a different choice and fled. Back in the years 1946-1951 such an escape to the South was not as difficult as it is today - the border was poorly controlled and during the initial stages of the Korean War, dramatic changes in the military situation and the absence of fixed front lines favored escapees. Nobody knows for sure how many people moved South in the years 1946-51, since nobody bothered to count. Most estimates vary between 1.2 million to 1.6 million. This number includes a significant majority of former landlords and their family members. When these people were running away they could not take anything of value but they usually took their land titles. They assumed that the communist regime would eventually collapse and they wanted to get their land back. As we know, the regime did not collapse. Most of the former landlords eventually adjusted to life in the South and often became rich and successful people. Nearly all of them are dead by now, but their descendents are still in possession of the faded land titles, usually issued by the Japanese colonial administration many decades ago. It would be a minor exaggeration to say that any piece of well located flat land in North Korea has a potential claimant lying in wait, somewhere in Seoul. The number of such claimants is estimated at some 1.2 million - even though the actual number of claims must be significantly smaller, since there is a large number of multiple claims when few descendants of the same person claims the rights to the same parcel of land. The author personally knows a number of families in which such land titles are preserved with the utmost care. These people believe that they have good reason to be careful - every Korean knows the story of Kangnam real estate. Once upon a time, until the early 1960s, Kangnam was an undeveloped agricultural area south of the Han river, then in 1963 it was incorporated into Seoul. In a couple of decades, the paddy fields were covered with high-rise buildings, and the area became the most posh part of present-day Seoul. Predictably, Kangnam real estate prices sky rocketed. In many parts of the Kangnam area, land prices increased one thousand-fold within 20 years - and this is the real price, adjusted for inflation. It is widely assumed that similar things will happen in North Korea after unification. Descendents of North Korean landlords believe that after unification the old yellowed papers might make them rich - very rich, indeed. The South Korean government has never recognized North Korea's land reform - or for that matter, any laws or regulations introduced by the North Korean regime since 1945. In the late 1940s, the South conducted its own version of land reform, somewhat less radical than that of North Korea, but under current South Korean laws, the claims of the descendents of North Korean landowners are technically valid. This constitutes an extremely worrying and potentially explosive political problem. One can easy imagine how landlords' descendents will swarm on North Korea immediately after unification in order to demand what they see as their rightful property. Needless to say, they will not be welcomed by the locals. For decades North Korean propaganda has made it clear to North Koreans that the collapse of the Kim family regime will herald the return of greedy, brutal landlords who are always ready to make North Korean farmers into their powerless tenants. It is remarkable that even in the stories of the post-communist East Europe, presented by the North Korean propaganda, there is a recurrent topic of greedy landlords who are allegedly ready to grab their estates, depriving the Russian or East German farmers of their livelihood. The North Korean media often hints that the same things will happen in North Korea, if the North Korean populace will listen to the sweet lies about foreign "democracy and prosperity". Needless to say, hardly any descendant of the Russian landlords has shown up in his or her great-grandfather's village. However, in case of North Korea such statements might become one of few cases where the Pyongyang propaganda isn't complete lies. If unification comes, it will be important to explicitly acknowledge the 1946 land reform, declaring the property claims null and void. To placate former owners, some partial compensation might be considered, even though one doubts whether grandchildren of former landlords, usually rich and successful men and women, are in such dire need of compensation (especially when one takes into account that many of these families got their land by being remarkable deferential to the Japanese overlords in the colonial era). Now the land in North Korea is owned by the state, which quietly appropriated the private landholdings in the late 1950s (within the usual communist scheme aimed at the introduction of the state-managed agriculture). So, the re-distribution of the land, somewhat akin to the Chinese ''second land reform'' of the late 1970s, will have to became a part of any plan for North Korea's transformation. Speaking cynically, such land reform will even benefit the majority of the South Koreans, since it will discourage North Korean farmers from abandoning their poor villages and rushing to the shining lights of the South. It will also contribute to the revival of North Korean agriculture. Right now, the land issue does not appear to be politically important. This is understandable: unification is not on the immediate horizon and nobody knows when and how it is going to happen (or whether it will happen at all). However this relative lack of interest is what makes a solution possible. It is still politically acceptable to denounce all pre-1945 land rights in what is now North Korea. Alas, there is little chance that just a course of action would be taken by the South Korean government. Partially, South Korean politicians don't want to annoy the North, and partially they don't want to alienate their constituencies where exiled landlord families tend to be quite successful. And, last but not least, they think that it is too early to worry about such matters. They might be right, but it is possible that they will do nothing until it will be too late. Andrei Lankov is an associate professor at Kookmin University in Seoul, and adjunct research fellow at the Research School of Pacific and Asian Studies, Australian National University. He graduated from Leningrad State University with a PhD in Far Eastern history and China, with emphasis on Korea. He has published books and articles on Korea and North Asia. (Copyright 2011 Asia Times Online (Holdings) Ltd. All rights reserved. Please contact us about sales, syndication and republishing.)