In a case where the head of immigration office Eul issued an order to leave the Republic of Korea on the grounds that there is a criminal record against the application for extension of the period of stay for a person who is a nationality of Pakistan, the case holding that the above disposition was a deviation and abuse

In a case where the head of the Immigration Office of Pakistan issued an order to departure from the Republic of Korea in the purport of denying an application for extension of the period of sojourn on the grounds that there are criminal records of the crime of storing goods through occupational negligence and the crime of violating the Farmland Act in relation to the extension of the period of sojourn of Pakistan A, the case holding that the above disposition was abused and abused discretion on the ground that the above disposition was excessively disadvantageous to Gap compared to the public interest that he intends to achieve the disposition, in full view of the fact that Gap was subject to the suspension of indictment due to the crime of storing goods through occupational negligence, but was merely subject to the crime of storing goods

Articles 10(1) and 25 of the Immigration Control Act, Article 12 [Attachment 1] of the Enforcement Decree of the Immigration Control Act, Article 27 of the Administrative Litigation Act

[Judgment of the court below]

The head of Incheon Immigration Office

September 24, 2015

1. The Defendant’s disposition of departure order issued against the Plaintiff on February 12, 2015 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 18, 2007, the Plaintiff: (a) entered the Republic of Pakistan (C2); (b) entered the Republic of Korea as a short-term commercial status on April 18, 2007 on May 14, 2007; and (c) obtained permission to change the status of stay to the status of stay for corporate investment (D8) on October 1, 2007.

B. On October 15, 2009, the Plaintiff was granted permission for change to sojourn status of trade management (D9) on November 9, 2012, 201, when it operates a trade wholesale company in the name of “A&S INTRAL TRD”, and the period of stay is extended.

C. Meanwhile, on the other hand, on December 29, 201, the Plaintiff was sentenced to a disposition of suspension of indictment for the crime of the crime of the crime of the custody of goods in occupational category, where he/she dissatising the cryptors, which are stolen goods, and loaded in containers. Notwithstanding the fact that in the agricultural promotion area, he/she cannot engage in land use activities not directly related to agricultural production or improvement, in the agricultural promotion area, he/she was issued a summary order of KRW 5 million for the crime of the crime of the violation of the Farmland Act, which committed the illegal use of farmland for the purpose of export, such as heavy equipment, by leasing the land for which he/she was not permitted by Nonparty 1 from July 2009 to December 9, 2013 without permission for diversion of farmland from Nonparty 1.

D. On November 7, 2014, the Plaintiff applied for the extension of the period of stay for trade management (D9) again. However, on February 12, 2015, the Defendant issued the instant disposition ordering the Plaintiff to depart from the Republic of Korea with the purport of denying the application for extension of the period of stay on the grounds that the Plaintiff had criminal records on the crime of storing goods through occupational negligence and the crime of violating the Farmland Act, unpaid rents for the place of business, and failed to vindicate the business performance as a foreign investor.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1 to 15, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant’s assertion that the instant disposition was made on the ground that the Plaintiff was punished by a fine of five million won, and that the Plaintiff did not pay rent for the place of business and did not vindicate the business performance as a foreign investor, constitutes an addition or modification of the grounds for disposition beyond the scope of identity of basic factual relations, and thus, should not be allowed.

In addition, the crime of preserving stolen property through occupational negligence is an offender of negligence, damage was seized, the plaintiff did not gain any profit from the above case, and the crime of violating the Farmland Act is only a case where the plaintiff leased the above land to the plaintiff without obtaining the farmland diversion permission from the lessor of the land in Kimpo-si ( Address 1 omitted) and was sentenced to a fine by the plaintiff while using the above land as a place of business, and the plaintiff married to a citizen of the Republic of Korea and has a basis for living in the Republic of Korea, the disposition of this case is unlawful

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether it constitutes an addition or alteration of the grounds for disposition

The disposition agency may add or change other grounds only to the extent that the basic factual relations are recognized to be identical to the grounds for the initial disposition. The identity of the basic factual relations here should be determined based on whether the basic social factual relations are identical in the basic point of view by citing specific facts prior to the legal evaluation of the grounds for disposition (see Supreme Court Decision 2004Du12629, Jan. 13, 2006, etc.).

According to the evidence No. 1, No. 1, and No. 15, the defendant issued a notice of decision on examining an immigration offender (Evidence No. 15) to the plaintiff on the date of the disposition of this case, while taking the disposition of this case against the plaintiff, it is recognized that the defendant issued a notice of decision on examining an immigration offender (Evidence No. 15) to the plaintiff on the same day as the date of the disposition of this case. This notice includes all the facts that the plaintiff was subject to criminal punishment due to the crime of storing goods by occupational negligence, the crime of storing goods by occupational negligence, and the violation of the Farmland Act, and the fact that a foreign investor was unable to vindicate the business administration as a foreign investor. Thus, the disposition of this case on the ground that the failure to pay rent for the place of business and failure to vindicate the business performance as a foreign investor does not constitute an addition or modification of the disposition reason. Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the discretion is deviates or abused

Article 10(1) of the Immigration Control Act provides that “A foreigner who intends to enter the Republic of Korea shall have the status of stay prescribed by Presidential Decree.” Article 25 of the same Act provides that “A foreigner who intends to continue to stay in excess of the period of stay shall obtain permission for extension of the period of stay from the Minister of Justice before the period of stay expires, as prescribed by Presidential Decree.” Furthermore, Article 12 [Attachment 1] [Attachment 1] 18 of the Enforcement Decree of the Immigration Control Act provides that “a person who intends to establish and operate a company in the Republic of Korea, or engage in trade or other profit-making activities, among the status of stay of a foreigner under Article 10(1) of the Immigration Control Act,

In addition to the language, structure, and purport of the above provisions, and the permission for extension of status of stay to a foreigner staying in the Republic of Korea has the nature of the permanent disposition granting the authority to continue his/her sojourn in excess of the initial period of sojourn, it is reasonable to deem that the permission for extension of the period of sojourn is a discretionary act to determine whether to grant such permission in consideration of the applicant’s eligibility, purpose

In light of the above legal principles and the provisions of the Acts and subordinate statutes, in full view of the following circumstances that can be seen by comprehensively taking into account the health class, the evidence mentioned above, the evidence mentioned above, Gap evidence Nos. 3 through 8, and evidence Nos. 9-1, 2, 10-1, 2, 11 through 24, and the overall purport of the arguments and arguments, it is reasonable to view that the disposition of this case exceeded the disadvantage suffered by the plaintiff compared to the public interest to be achieved by the disposition of this case.

① Although the Plaintiff was subject to the suspension of indictment for the crime of storing property through occupational negligence, it is only limited to a criminal negligence, and the case is minor due to various circumstances, the suspension of indictment seems to have been imposed.

② Although the Plaintiff was issued a summary order of KRW 5 million due to the violation of the Farmland Act, it appears that Nonparty 1, the lessor of the Plaintiff’s place of business, without obtaining permission for farmland conversion, leased this order to the Plaintiff without obtaining permission for farmland conversion. The Plaintiff’s use of the said place of business without properly verifying it, and thus, the Plaintiff’s nature of crime is not significant. In light of this, the court also issued a summary order of KRW 20 million to Nonparty 1 and KRW 5 million to the Plaintiff.

③ In light of the fact that Article 46(1) of the Immigration Control Act provides that a person subject to deportation is “a person who has been sentenced to imprisonment without prison labor or heavier punishment and has been released” under Article 46(1)3 of the Immigration Control Act, a person subject to deportation is subject to more prudent application in cases where he/she is punished as “a fine,” instead of “a fine,” as in

④ On September 15, 2014, the Plaintiff leased the Incheon ( Address 2 omitted) and paid rent to the lessors properly. However, during the first half of 2014, the Plaintiff appears to have faithfully carried out the business by raising sales exceeding KRW 100 million during the first half of 2015.

⑤ In addition, on August 5, 2014, the Plaintiff is married with Nonparty 2, who is a national of the Republic of Korea, and the Plaintiff’s return to Pakistan is difficult to maintain the matrimonial relationship.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Kang Jong-chul (Presiding Judge)