Plaintiff (Law Firm Seog, Attorneys Ansan-tae et al., Counsel for the plaintiff-appellant)

The Minister of Justice

June 29, 2017

Seoul Administrative Court Decision 2016Guhap72242 decided February 23, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On July 22, 2015, the Defendant’s disposition of denial of recovery of nationality against the Plaintiff is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows: (a) the court’s explanation on the instant case is to dismiss “the finding” No. 63 of the judgment of the court of first instance as “the finding”; and (b) No. 8 and No. 4 of the judgment of the court of first instance as “the finding”; and (c) the reasoning for the judgment of the court of first instance is as follows; and (d) it is cited in accordance with Article 8(2) of

[Supplementary Use]

D. Determination

1) The meaning of the relevant statute

While relaxing the substantive requirements compared to naturalization, considering the disposition of granting the nationality of the Republic of Korea again to foreigners who were nationals of the Republic of Korea, and taking into account the fact that they were nationals of the Republic of Korea, it is necessary to exclude those who are recognized a foreigner as members of the Korean community and are in danger of undermining the integration and order of the State and society. Therefore, in cases falling under any subparagraph of Article 9(2) of the Nationality Act, the defendant should not be permitted to recover the nationality.

Although such recovery of nationality is recognized as a field of high-level policy decision, the defendant should exercise its discretionary power reasonably in consideration of the legislative purpose of the Nationality Act, the legislative intent of the individual provisions that prescribe the requirements for recovery of nationality, and the contents of the language and text.

In light of such legal principles, the phrase “a person who is not in good conduct” under Article 9(2)2 of the Nationality Act shall be interpreted as a person who appears to be a member of the next society, by comprehensively taking into account the following circumstances: (a) the substance of the pertinent criminal act; (b) the background leading to such act; (c) the background leading up to such act; (d) the age, occupation, family, career, and criminal record of the person who seeks recovery of nationality; and (e) the person who seeks recovery of nationality

2) In the instant case:

In full view of the following circumstances acknowledged by comprehensively taking into account the evidence and the purport of the entire pleadings, the disposition of this case does not constitute an unlawful act of deviating from or abusing discretion, even considering the circumstances alleged by the Plaintiff.

A) The Plaintiff filed a complaint with the investigative agency to the effect that Nonparty 1 and Nonparty 2 repeatedly sold the shares of the Plaintiff’s Escke and embezzled the sales price. According to the judgment of conviction, the Plaintiff’s shares under the Plaintiff’s name were actually held in title trust by Nonparty 1, and can be recognized through objective facts, such as the process of purchase of the shares and the Plaintiff’s attitude related to the sale of the shares. Thus, the Plaintiff’s assertion that the actual owner of the shares is the Plaintiff’s own shares is against the objective factual basis, and it is difficult to view that the difference in legal interpretation merely results in the difference in the Plaintiff’s crime.

B) In relation to the Plaintiff’s lawsuit seeking return of unjust enrichment filed by Nonparty 3 against the Plaintiff’s mother, the Plaintiff testified to the effect that the Plaintiff himself/herself owns the relevant real estate and will only offer Nonparty 3’s name in the investigation agency, etc., but he/she testified to the same effect in the lawsuit above, and thus, it cannot be deemed that the nature of the crime is somewhat weak.

C) The economic interest that the sale price of the shares alleged by the Plaintiff as one of its own shares reaches KRW 4,491,312,890 to KRW 6,836,401,840 is reasonable. Nonparty 3’s lawsuit to return unjust enrichment is not merely an individual lawsuit instituted by Nonparty 3 against the Plaintiff’s mother, but also is derived from the continuous legal dispute process between the Plaintiff, including Nonparty 3, and the opposing Plaintiff’s family members, and thus, it cannot be deemed that the above crime liability is light in this respect because it is not appropriate to have motive for such accusation and perjury.

D) The Plaintiff asserts to the effect that the crime of false accusation and perjury is difficult to be viewed as the realization of an individual malicious nature because the crime of false accusation and perjury occurred due to the internal property of his family. However, as seen earlier, rather than seeking to resolve such private dispute through legitimate procedures, such as civil litigation, etc., the Plaintiff mobilized unfair methods, such as false accusation and perjury, and it is evident that such an act would compromise the fairness of the basic judicial system that must be observed as a member of the community. In addition, in that most of the acts of false accusation and perjury arise from a private legal dispute with the other party concerned, as alleged by the Plaintiff, it does not change because the Plaintiff’sless accusation and perjury were caused by the property dispute between the Plaintiff’s family members.

E) It is difficult to readily conclude that the Plaintiff has contributed significantly to the Republic of Korea by performing public interest as an educator solely on the grounds that the Plaintiff is currently serving as the director of the ○ University Research Institute, the president of the ○ University Research Institute, and the director of the △△ Foundation, and Nonparty 5, and considering the high moral standards and social impacts associated with the status of educators, the Plaintiff’s series of crimes above should be evaluated as an un

F) The Plaintiff, while residing in the United States, has returned permanently to the Republic of Korea from around 2006 to the present time after having lost the citizenship of the Republic of Korea, has maintained a living in the Republic of Korea without any special disability. The Plaintiff did not have attempted to recover the nationality of the Republic of Korea for the said period. In addition to the fact that the Plaintiff received a compulsory departure order on grounds of criminal punishment, there is no special circumstance for the Plaintiff to recover the nationality of

Therefore, it cannot be readily concluded that the Plaintiff’s failure to recover the nationality of the Republic of Korea directly suffers any disadvantage or the issue of residence faced by the Plaintiff is resolved only through the reinstatement of nationality. Moreover, even if there is any personal disadvantage due to the instant disposition, such personal disadvantage is larger than the public interest that should be protected through the said disposition.

G) As seen earlier, it is difficult to view that the Defendant had a broad discretion on the part of the Defendant as an area of high-level policy judgment. Considering such Defendant’s discretionary power, legislative purpose of the Nationality Act, and the legislative purpose and text of individual provisions regarding the requirements for reinstatement of nationality, it was related to various legal disputes domestically and overseas at the time of filing an application for permission for reinstatement of nationality, and that the Plaintiff was subject to criminal punishment for criminal acts involving public interest, such as false accusation and perjury, and that the Defendant had any character and behavior likely to impede acceptance as members of our society at the time of the instant disposition.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed for the reason that it is without merit, and the judgment of the court of first instance is unfair with different conclusions, and thus the plaintiff's claim is revoked and dismissed.

Judges Kim Jong-ju (Presiding Judge)