Plaintiff (Attorney Park Jae-sik et al., Counsel for the plaintiff-appellant)

The Minister of Justice

June 18, 2009

1. The defendant's rejection of naturalization against the plaintiff on December 19, 2008 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The text of paragraph (1) is as follows.

1. Details of the disposition;

(a) Details of the plaintiff's stay in the Republic of China;

(1) Entry into the Republic of Korea on June 17, 2005 by short-term comprehensive (C-3) stay status;

(2) From July 11, 2005: Status of stay for visits (F-1-4) and special employment permiters (E-19)

(3) From March 12, 2007: Status of stay for visiting employment (H-2)

(4) On or after June 26, 2008: Other status of stay (G-1): (The reason is that the period of medical care for an industrial accident injury and disease suffered by the plaintiff on October 26, 2007 is extended to July 25, 2008).

B. Plaintiff’s application for naturalization

Application for simplified naturalization on August 28, 2008 (Articles 5 and 6 (1) 1 of the Nationality Act)

C. The defendant's non-permission disposition (the disposition of this case on December 19, 2008)

A ground: Other (G-1) Status of stay is a temporary status granted where a cause for temporary stay occurs in the Republic of Korea due to inevitable reasons, such as litigation or disease, and filing an application for naturalization using such status of stay cannot be deemed to meet the requirements for simplified naturalization because it does not comply with the nature of the above status of stay and the general

[Ground of recognition] Class A evidence Nos. 1, 2, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff constitutes “a person who has a domicile in the Republic of Korea for at least three consecutive years” under Article 6(1) of the Nationality Act and satisfies all the requirements for simplified naturalization, and thus the instant disposition is unlawful as it deviates from and abused discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Legal principles

Article 4 (2) of the Nationality Act provides that "The Minister of Justice shall, upon examining whether a person who applied for naturalization satisfies the requirements for naturalization under Articles 5 through 7, allow naturalization only to the person who satisfies the requirements." Accordingly, Articles 5 through 7 of the Nationality Act provides for the requirements for naturalization.

In light of the above legal provisions, permission for naturalization is a disposition that grants a foreigner a status as a citizen of the Republic of Korea, and the defendant's screening and determination of naturalization requirements is recognized to a certain extent of discretion. However, if an applicant for naturalization satisfies naturalization requirements, although the applicant for naturalization satisfies naturalization requirements, the defendant's fact-finding, which serves as the premise for naturalization or excessively narrow interpretation of the contents of naturalization requirements, and the applicant refused the application for naturalization by determining that the applicant failed to meet naturalization requirements, it is illegal as it deviates from and abused discretionary authority

Meanwhile, in full view of the provisions of Article 4(1) of the Enforcement Decree of the Nationality Act, Articles 10(1), 24(1), 25, 31, 46, 67, 68, 94, and 95 of the Immigration Control Act, the scope of “a person who has a domicile in the Republic of Korea for at least three consecutive years,” which is a requirement for simplified naturalization under Article 6(1) of the Nationality Act, shall not include any foreigner who has been staying in the Republic of Korea for at least three consecutive years in violation of the relevant domestic laws, such as the Immigration Control Act, and other relevant laws and regulations, but if the person has been legally granted the status of stay under the domestic law and has a place based on his living in the Republic of Korea for at least three years, it shall be deemed that the person falls under such case.

In addition, the above provision does not require that certain types of sojourn status be granted in calculating the period in which the address is located, so it is reasonable to interpret that the above provision should be included in the calculation regardless of the type of sojourn status as long as it is legally authorized to stay in accordance with the domestic law.

(2) Determination

As seen earlier, the Plaintiff’s sojourn status from July 11, 2005 (F-1-4) and from the Special Employment Permiter (E-19) as the sojourn status of visit employment (H-2) from March 12, 2007, and continued to reside in the Republic of Korea as the sojourn status of other (G-1) sojourn status from June 26, 2008 to the time of application for temporary naturalization, and it is apparent that the period of residing in the Republic of Korea exceeds three years.

Therefore, since the Plaintiff constitutes “a person who has had a domicile in the Republic of Korea for at least three consecutive years” under Article 6(1) of the Nationality Act, the instant disposition based on the Plaintiff’s failure to meet the above requirements is deemed to be unlawful as a deviation from and abuse of discretionary power.

3. Conclusion

The plaintiff's claim is justified and accepted.

Judges Cho Sung-sung(Presiding Judge) (Presiding Judge)