2010Du13913 Revocation of Disposition of Non-permission for acquisition of nationality

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Seoul

The Minister of Justice

Omission of Litigation Performers

Seoul High Court Decision 2009Nu27543 Decided June 18, 2010

October 28, 2010

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Whether an administrative act is a discretionary act or not shall be the system, form and language of the law that forms the basis of the act, the main purpose and characteristics of the administrative sector to which the act belongs, and the individual nature of the act in question.

Determination should be made in consideration of both the type and others.

Article 4(1) of the Nationality Act provides that "A foreigner may obtain nationality of the Republic of Korea by obtaining permission for naturalization from the Minister of Justice." Article 4(2) provides that "The Minister of Justice shall allow naturalization only to a person who satisfies the requirements after examining whether a foreigner satisfies the requirements for naturalization." The language of the above provision alone does not clearly state the purport that a foreigner meeting the requirements for naturalization as prescribed by the Minister of Justice must be permitted naturalization. However, nationality is determined the citizen's qualification, and the person who acquired the nationality becomes a sovereign of the State at the same time as a sovereign of the State, and at the same time becomes the subject of sovereign power of the State. Thus, permission for naturalization constitutes an act of comprehensively establishing a legal status as a citizen of the Republic of Korea by granting a nationality of the Republic of Korea to a foreigner. Meanwhile, there is no provision that a foreigner granted a right to acquire nationality of the Republic of Korea to a foreigner in anywhere in the relevant statutes, such as the Nationality Act. Considering

Even if there is a reasonable ground to view that a person has discretion as to whether to permit naturalization (see Supreme Court Decision 2009Du19069, Jul. 15, 2010, etc.).

According to the reasoning of the judgment below, after citing the reasoning of the judgment of the court of first instance, the court below acknowledged the facts as stated in its reasoning. The court below held that the defendant's disposition of this case, which rejected the plaintiff's application for permission of simplified naturalization on the ground that the plaintiff's application for permission of naturalization was unlawful since the plaintiff's application for permission of naturalization was not satisfied under Article 6 (1) of the Nationality Act and did not meet the above domestic residence requirements, and the defendant's disposition of this case, which rejected the plaintiff's application for permission of naturalization on the ground that "the foreigner's application for permission of naturalization was not satisfied for three consecutive years or more in the Republic of Korea."

However, in light of the reasoning of the judgment below and the records, the reason for the disposition in this case does not meet the domestic residency requirements of simplified naturalization. The reason for disposition in this case not only means "the meaning of the above sojourn status, but also it is reasonable to view that "it includes the purport or nature of the above sojourn status as an exercise of discretionary authority by an administrative agency regarding naturalization permission even if it is possible to meet the domestic residency requirements of simplified naturalization due to the above sojourn status." Therefore, in accordance with the above legal principles, if the court below determined that the plaintiff had satisfied the domestic residency requirements of simplified naturalization including the period until he resided in G-1 (G-1), it should have also judged whether the defendant's refusal of an application for naturalization by considering the contents or nature of the above sojourn status, etc. Furthermore, the court below should have judged that the disposition in this case was illegal without proceeding to the above judgment. Thus, the court below erred by misapprehending the legal principles on the legal nature of naturalization and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan

Justices Noh Jeong-hee.

State Justice Cha Han-sung -

Justices Shin Young-young