[1] Whether the Minister of Justice has discretion to decide whether to permit naturalization to a foreigner who satisfies the requirements under Articles 5 and 7 of the Nationality Act (affirmative)

[2] In a case where a father of the People's Republic of China, who was a citizen of the Republic of Korea, applied for naturalization on the ground that he/she had been staying in the Republic of Korea as a visiting employment (H-1) and other status of stay (G-1) after entering the Republic of Korea, and applied for naturalization using other status of stay, and the Minister of Justice rejected the application on the ground that the existence of other status of stay and the general purport of the nationality system are not consistent with the reason for such status of stay and the case holding

[1] Whether to grant nationality or not is a matter of highly political nature that determines the scope of sovereign rights of the State. Furthermore, since the acquisition of nationality through naturalization is a system that grants nationality to foreigners who are relatively less related to the Republic of Korea compared to the acquisition of nationality through birth, recognition, and recovery of nationality, etc., there is a need to conduct a more strict examination as to the circumstances such as the Republic of Korea’s existing social order and social order, and the possibility of dynamic and integration with the members of society. However, the determination on this is considerably affected by the historical circumstances, tradition, environment, etc. of the relevant country, and it is difficult to provide for the requirements in the law in an arbitrary manner. In light of the above, the legislative field that prescribes requirements for permission of naturalization, the method of filing an application for permission, the effect upon permission, etc., as well as the broad discretion of the relevant country should be recognized. Article 4(2) of the Nationality Act also provides that the Minister of Justice may determine whether to grant permission of naturalization in the Republic of Korea by reflecting the above circumstances, and all circumstances such as the need to provide for naturalization or social conditions within the Republic of Korea.

[2] In a case where a person of the People's Republic of China who was a citizen of the Republic of Korea was staying in the Republic of Korea with the visit employment (H-1) and other (G-1) sojourn status after entry into the Republic of Korea, and an application for naturalization using other sojourn status was rejected by the Minister of Justice on the grounds that the existence of other sojourn status and the general purport of the nationality system are not consistent with Article 6 (1) 1 of the Nationality Act, the case holding that in a case where a supplementary sojourn status is presented that the foreigner needs to stay in the Republic of Korea due to a lawsuit, etc., the disposition of naturalization cannot be deemed as abuse of discretion on the grounds that there should be more broad discretion than the person staying in the other sojourn status when determining the permission of naturalization, on the grounds that in a case where an application for simplified naturalization is filed under Article 6 of the Nationality Act including the period during which the foreigner stays in the Republic of Korea as a supplementary sojourn status is recognized.

[1] Articles 5, 6, and 7 of the Nationality Act / [2] Article 6 (1) 1 of the Nationality Act, Article 27 of the Administrative Litigation Act

Plaintiff (Law Firm TelviS, Attorneys Choi Won-ro, Counsel for the plaintiff-appellant)

The Minister of Justice

September 3, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's refusal to apply for acquisition of nationality against the plaintiff on April 23, 2009 shall be revoked.

1. Details of the disposition;

A. The plaintiff was a national of the People's Republic of China, who was a national of the Republic of Korea, entered the Republic of Korea on November 26, 2005 with the visit Dong (F-1) sojourn status on May 10, 2006, changed the status of non-professional employment (E-9), and sojourn status on April 16, 2007 (H-2), and stayed in the Republic of Korea from November 28, 2008 to other (G-1) sojourn status.

B. On November 17, 2008, the Plaintiff filed an application for simplified naturalization under Article 6(1)1 of the Nationality Act on the ground that he/she was a citizen of the Republic of Korea as to the Defendant and had his/her domicile in the Republic of Korea for not less than three years. However, on April 22, 2009, the Defendant rejected the application for simplified naturalization of the Plaintiff on the ground that “other (G-1) sojourn status is granted when it is deemed necessary to temporarily stay in the Republic of Korea due to inevitable reasons (such as litigation, disease, etc.) occurred after entry by a foreigner who entered the Republic of Korea, and the application for naturalization using other (G-1) sojourn status granted by the Government of the Republic of Korea at a humanitarian level does not conform to the grounds for the existence of the stay status and the general purport of the nationality system” (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 1, 27 evidence, Eul 1 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was an additional citizen of the Republic of Korea and met all the requirements for simplified naturalization under Article 6(1) of the Nationality Act, since the Plaintiff had an address in the Republic of Korea for not less than three years. Nevertheless, the instant disposition rejecting the Plaintiff’s application for naturalization is unlawful by deviating from and abusing the discretion solely on the ground that the period of stay in the Plaintiff’s qualification includes the period

B. Relevant statutes

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

C. Determination

(1) Article 4 (2) of the Nationality Act provides that "The Minister of Justice shall, after examining whether an applicant for naturalization satisfies the naturalization requirements under Articles 5 through 7 of the same Act, permit naturalization only to the person who satisfies the requirements." Thus, there is room for conflicting opinions as to whether the Minister of Justice may refuse the application on the ground of other circumstances, or whether the discretion of the Minister of Justice can be recognized even in the area of execution related to naturalization.

First of all, the naturalization system is a system that provides qualification as a national of the Republic of Korea to foreigners or stateless persons (hereinafter “foreigners, etc.”) who meet the requirements prescribed in the domestic law regardless of prior acquisition of nationality. The requirements for naturalization are left at the discretion of legislators so that national policies can be fully reflected in the territory belonging to the exclusive jurisdiction of the State. However, once the requirements are prescribed by the law, the requirements for naturalization must be clearly and strictly interpreted and applied because they have a very large impact on the rights and obligations of a national of the Republic of Korea depending on whether a foreigner is qualified as a national of the Republic of Korea. If the requirements prescribed by the law are met, the Minister of Justice must permit naturalization in light of the purport of Article 4 of the Nationality Act, and there is no room for other non-permission (see Seoul High Court Decision 2009Nu1135, Oct. 6, 2009).

However, the issue of whether to grant nationality is a matter of high level political nature to determine the scope of sovereign holders of the State. Furthermore, since the Republic of Korea grants nationality to foreigners who are relatively less related to the Republic of Korea, compared to the acquisition of nationality through naturalization, such as birth, recognition, and recovery of nationality, it is recognized that there is a need to conduct a more strict examination as to the circumstances such as whether the existing social order and social welfare of the Republic of Korea and the possibility of dynamic or integration with the members of society is possible. However, in light of the fact that the relevant country's historical circumstances, tradition, environment, etc. are considerably affected by the relevant statutes and it is difficult to clearly define the requirements in the laws and regulations, not only the legislative area that provides for requirements for permission of naturalization, the method of filing an application for permission, the effect upon permission, etc., but also the broad discretion of the relevant country should be recognized in the execution area to determine whether to grant permission if the requirements or methods are met. Article 4(2) of the Nationality Act also provides that the Minister of Justice may still provide for naturalization as a minimum requirement for permission or social condition in the Republic of Korea.

(2) In full view of the following circumstances, the Defendant cannot be deemed to have abused or abused the scope of discretion in rendering the instant disposition, taking into account the following circumstances acknowledged by comprehensively taking into account the health team, Eul evidence Nos. 1 and 4 (including each number):

(A) Other status of stay (G-1) is a supplementary status of stay granted to a person recognized by the Minister of Justice who does not fall under diplomatic (A-1) through permanent residence (F-5) and tourism (H-1), and employment (H-2). In the event that a foreigner presents the need to stay in the Republic of Korea due to an industrial accident, disease, lawsuit, refugee application, etc. after entering the Republic of Korea, the defendant grants other status of stay (G-1) without any particular examination at a humanitarian level. Therefore, in the event of an application for simplified naturalization as prescribed in Article 6 of the Nationality Act, including the period of stay in other (G-1) status of stay, it is reasonable to view that the defendant has more broad discretion than the person who stays in other status of stay in the determination of whether to grant such status of stay. Other (G-1) interpretation would be more strict review related to naturalization requirements and be contrary to the legislative intent of the above status of stay.

(B) On November 26, 2005, the Plaintiff entered the Republic of Korea as the sojourn status of the Visit (F-1) and stayed in Korea for about 3 years and 5 months until the time of the instant disposition. Among them, the Plaintiff stayed as the sojourn status of visiting employment (H-2) and other (G-1) sojourn status for at least 2 years.

(C) From March 4, 2007, the status of stay for visiting employment (H-2) was newly established following the implementation of a visiting employment system that simplifys employment procedures and employment procedures in order to expand employment opportunities for foreign nationality Koreans. In order to prevent abuse of the above status of stay due to an application for naturalization, etc., the maximum period of one-time period of stay after entry was stipulated for three years. At the time when the aforementioned system was first implemented, the status of stay was changed to the status of stay for non-professional employment (E-9) and visiting employment (F-1), but in this case, the status of stay was permitted for only three years from the date of initial entry.

(D) On November 24, 2008, immediately before the expiration of the period of sojourn, the Plaintiff filed a lawsuit to revoke the revocation of the application for permission of naturalization (Seoul Administrative Court 2008Guhap46217, Nov. 24, 2008) and applied for the permission of alteration of sojourn to other (G-1) sojourn status, and the Defendant reviewed only the supporting materials as to the filing of the lawsuit, and then granted the Plaintiff other (G-1) sojourn status without any particular examination. In addition, the Plaintiff received the instant disposition on April 22, 2009, and filed the instant lawsuit on May 25, 2009, filed an application for the extension of the period of sojourn on the grounds that the lawsuit is in progress, and the Defendant extended the period.

(E) The plaintiff seems to have been well aware of the major contents of the foreigner status system, including the fact that the upper limit of the foreigner status of visiting employment (H-2) in the process of granting and renewal of the status of stay is three years, and that other (G-1) status of stay is supplementary and exceptional status of stay.

(F) There is no evidence to suspect that the instant disposition constitutes discrimination on the ground of the Plaintiff’s unreasonable reasons such as race, gender, and nation’s race.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Park Jong-dae (Presiding Judge)