(영문) 서울남부지방법원 2019.10.18.선고 2019고단1190 판결

The Defendant, with the nationality of the People's Republic of China, was to marryed by introducing ○○○○ (living on October 24, 1958) of nationality of the Republic of Korea from her husband, who was living separately with her husband ○○○, but was not allowed to proceed with the divorce procedure due to the interruption of contact with her husband ○○, thereby having been married with her husband ○○ in another person’s name and having been married with her husband ○○.

On January 8, 2002, the Defendant issued a Chinese passport under the name of ○○○ (68 students, loan) (hereinafter “the above”), which was issued by the Ministry of Foreign Affairs on August 31, 2001, to the Chinese passport under the name of ○○○ (68 students, loan) where his photograph is attached to the issuing authority of the Chinese Ministry of Foreign Affairs, and issued a visa on January 2, 2002 to the Chinese passport under the name of ○○○○ (F-1) where he was issued by his invitation on January 2, 2002. On January 8, 2002, the Defendant presented that he was aware of it in the course of the entry inspection at the Incheon Airport Entry Inspection Station in the name of ○○○○ (F-1).

After the death of the above ○○○ on December 18, 2003, the defendant, a spouse of the above ○○ on April 22, 2005, acquired the nationality of the Republic of Korea with the nationality of the Ministry of Justice and 'OO' as an applicant for the nationality of the Republic of Korea on April 22, 2005, and around January 11, 2006, the name 'OOO', resident registration number ********************************? A passport of the Republic of Korea was issued under the name of 'OO' by submitting his photograph to the public official in charge of issuance of the passport to ○○○○ on April 25, 2008, after obtaining permission from the Geumcheon-gu Seoul District Court.

1. False entry in a passport;

On July 8, 2014, the defendant stated in the Geumcheon-gu Civil Service Passport Division of Geumcheon-gu Office in Geumcheon-gu Seoul Metropolitan Government as "name, Kim○○○, resident registration number,"****************** in the previous Korean name column in the application for change of English name,************************************************* in the change column of English name, the reason for change of English name was written as false, and submitted it to the public official in charge of issuance of the passport who is unaware of the fact that the contents were false, and received the reissuance of the passport under the above public official's name.

Accordingly, the defendant made a false report to a public official, and made him enter false facts in a passport which is the original copy of a notarial deed.

2. Violation of the Immigration Control Act and any false entry and passport execution;

(a) When a foreigner departs from the Republic of Korea, the foreigner must undergo an examination by immigration officials at the port of entry and departure with a valid passport;

On March 24, 2014, the Defendant, at the departure inspection site of Incheon Airport, and on March 24, 2014, sent a false entry passport under the name of Kim○, Korea, Kim○○ (former name ○○○○○○) in the name of China, which was issued as above, to a public official in charge of departure and entry inspection who is aware of the fact thereof, and went through the Incheon Airport without a valid passport issued by the Chinese government, as shown in attached Table 1, from the above date and time to April 7, 2017, the Defendant left Korea without a valid passport over 11 times in total.

(b) If a foreigner intends to enter the Republic of Korea, he/she shall have a valid passport and visa issued by the Minister of Justice.

On April 2, 2014, the Defendant entered the Republic of Korea without a visa issued by the Minister of Justice and a valid passport over 11 times in total from the above date to June 5, 2018, as shown in Appendix 2, as shown in Appendix 2, where the Defendant, a Chinese national, and a Korean Kim-○, who disguisedly proposed a Korean passport under the name of Kim-○, issued as above, to a public official in charge of immigration inspection who is aware of such fact, and exercises a false entry passport, entered the Republic of Korea through a valid passport issued by the Chinese government and a Incheon Airport without a visa issued by the Minister of Justice, and entered the Republic of Korea without a visa issued by the Minister of Justice, even from the above date to June 2, 2018.

2. Determination

A. The issues of the instant case

Of the facts charged in this case, the defendant's violation of the Immigration Control Act is automatically null and void, and the reissuance of a passport against the defendant premised on valid permission for naturalization is also null and void. Thus, the defendant still went into and departs from the Republic of Korea using a valid passport is a violation of the Immigration Control Act. (On the other hand, in case where the defect occurred in the process of issuing a visa does not reach the degree of invalidity per annum, the visa issued until the disposition of visa issuance is revoked is still valid. Thus, even if a foreigner enters the Republic of Korea with such visa, the violation of the Immigration Control Act is not established (Supreme Court Decision 19

6. 8. Supreme Court Decision 80Do2646 Decided December 26, 1995; Supreme Court Decision 95Do2172 Decided December 26, 1995; Supreme Court Decision 9Da2646 Decided September 201.

9. [See, e.g., Supreme Court Decision 2010Do559]

Furthermore, among the facts charged in the instant case, since permission for naturalization of the Defendant is null and void a year, it is premised on the fact that all of the personal information (name and resident registration number) issued by the Defendant or permission for the opening of a passport is false, since the defendant's permission for naturalization is void a year.

Therefore, if permission of naturalization against the defendant is not void automatically, the facts charged in this case cannot be established as a crime. Thus, the issue of this case is whether permission of naturalization against the defendant is void automatically.

B. If an administrative agency revokes the nationality granted by permission for naturalization under Article 21(1) of the Nationality Act (see Supreme Court Decision 2014Nu63130, Jul. 10, 2015), an applicant for naturalization and his/her family member’s family member’s disadvantage is significant (see Seoul High Court Decision 2014Nu63130, Jul. 10, 2015).

Furthermore, as the exchanges in the international community increase, the departure and entry of foreigners are free, and human exchanges have been active, but on the other hand, the number of cases of acquisition of nationality of the Republic of Korea has increased by false or fraudulent means, such as submission of false documents or disguised marriage due to side effects, the Ministry of Justice has cancelled permission where permission for naturalization was obtained by means of unlawful means, such as submission of false documents (Article 752 of the Rules of the Ministry of Justice, which was enforced from May 9, 2006). However, when permission for naturalization was amended on March 14, 2008, Article 21 (1) of the Nationality Act was newly established at the time of amendment of the Nationality Act (see Constitutional Court Order 2015HunBa26, Sept. 24, 2015).

2) Article 21(1) of the Nationality Act provides that “The Minister of Justice may revoke the permission of naturalization, reinstatement of nationality, or adjudication on possession of nationality by fraud or other improper means.” Article 27(1) of the Enforcement Decree of the Nationality Act, which specifically provides the grounds for the revocation of permission of naturalization, may revoke the permission of naturalization, reinstatement of nationality, or adjudication on possession of nationality against the following persons pursuant to Article 21(1) of the Act.” “The Minister of Justice may revoke the permission of naturalization, reinstatement of nationality, or adjudication on possession of nationality” under subparagraph 1 of the same Article. “A person who forges or alters evidentiary documents for the purpose of obtaining permission of naturalization, reinstatement of nationality, or adjudication on possession of nationality, or submitted forged or altered evidentiary documents for the purpose of obtaining a judgment on possession of nationality, and “A person who is found guilty” under subparagraph 4, and “A person who has other serious defects in permission of naturalization

According to the above provisions, even if permission of naturalization was obtained by an illegal means, such as the case of forgery or alteration of documents evidencing identification for the purpose of obtaining permission of naturalization, it is defined as the grounds for revocation of permission

Comprehensively taking account of the developments leading up to the enactment of Article 21(1) of the Nationality Act and the language and text of the above provisions, etc., even if permission of naturalization was obtained by deceit or other unlawful means, it does not require revocation of permission of naturalization without permission of naturalization. However, considering all circumstances, such as the degree of illegality at the time of obtaining permission of naturalization, living relationship formed after permission of naturalization, disadvantage of the party to receive the revocation of permission of naturalization, etc., the Minister of Justice may have certain discretion to determine whether permission of naturalization was revoked (see Constitutional Court Decision 2015HunBa26, Sept. 24, 2015; Supreme Court Decision 2017Nu75011, Jan. 30, 2018).

Therefore, there may be room for considering the progress of time from the time of permission of naturalization to the time when the Minister of Justice exercises the right of revocation (see, e.g., Supreme Court Order 2015HunBa26, Sept. 24, 2015). In other words, the determination on whether to revoke permission of naturalization is made by taking into account all circumstances, such as the degree of illegality at the time of obtaining permission of naturalization, living relationship formed after permission of naturalization, disadvantage of the party to obtain permission of naturalization, the degree of time elapsed from the time when permission of naturalization was revoked, and the degree of time elapsed from the time when the right of revocation is exercised. If there is no justifiable consideration of such elements, the disposition of revocation of permission of naturalization may be deemed unlawful by deviation or abuse of its discretionary authority (see, e.g., Seoul High Court Decision 2017Nu84350, Jun. 13, 20

C. Whether permission of naturalization of the defendant is void automatically

In light of the following circumstances that can be recognized by the record, ① even if the defendant obtained permission of naturalization in accordance with Article 21(1) of the Nationality Act as seen earlier, it is difficult to readily conclude that the defendant had such permission beyond the grounds for revocation and invalidation. ② The defendant appears not to have entered the Republic of Korea on the ground of false status for the purpose of committing special crimes, but rather to have entered the Republic of Korea for the purpose of married life with ○○○. ③ The marriage with ○○ is merely a ground for revocation of marriage, and ④ The defendant’s spouse died on December 18, 200, and thus, the defendant obtained permission of naturalization on the ground of 200,000 from the Seoul Office (the death of his spouse), which is one of the grounds for naturalization under the Nationality Act, and it is difficult to readily conclude that the defendant obtained permission of naturalization from 1 to 20,000,000 won by reporting it to 20,000 won, which is the only ground for revocation of permission of naturalization.

3. Conclusion

Thus, since all of the facts charged in this case constitute a case where there is no proof of facts constituting the crime, the judgment of innocence is rendered under the latter part of Article 325 of the