[1] Whether a disposition of prohibition of departure can be taken immediately on the ground that the unpaid tax exceeds a certain amount and the unpaid tax is not justified (negative), and the standard for determining the possibility of overseas flight of property

[2] Where the Commissioner of the National Tax Service et al. fails to meet the requirements for prohibition of departure, whether the Minister of Justice’s disposition of prohibition of departure is unlawful naturally (negative)

[1] Article 4(1) of the former Immigration Control Act (amended by Act No. 10863, Jul. 18, 201); Article 1-3(2) of the former Enforcement Decree of the Immigration Control Act (amended by Presidential Decree No. 23274, Nov. 1, 201) provides that the freedom of departure of citizens constitutes a fundamental right guaranteed by the Constitution, and such restriction shall be limited to the minimum necessary extent, and the interpretation and operation of the provisions on prohibition of departure, such as the Immigration Control Act, shall also be based on the same principle. The former Enforcement Decree of the Immigration Control Act (amended by Presidential Decree No. 23274, Nov. 1, 201) provides that “a person who fails to pay national taxes, customs duties, or local taxes within the payment period without justifiable grounds, shall be prohibited from departing from the Republic of Korea with a view to ensuring that the unpaid taxpayer is unable to perform compulsory execution by leaving his/her property overseas by using his/her property overseas, and thus, it shall not be deemed that there is a reasonable reason to impose restrictions on his/her own discretion and free payment.

[2] In full view of Article 4(1) of the former Immigration Control Act (amended by Act No. 10863, Jul. 18, 2011); Articles 2 and 2-3 of the former Enforcement Decree of the Immigration Control Act (amended by Presidential Decree No. 23274, Nov. 1, 2011); even in cases where the Commissioner of the National Tax Service, etc. requests prohibition of departure, the Minister of Justice may decide whether to issue a disposition by taking into consideration whether the requirements for prohibition of departure are not binding upon the request of the Commissioner of the National Tax Service, etc.

[1] Article 4 (1) of the former Immigration Control Act (Amended by Act No. 10863, Jul. 18, 201); Article 1-3 (2) of the former Enforcement Decree of the Immigration Control Act (Amended by Presidential Decree No. 23274, Nov. 1, 201); Article 27 of the Administrative Litigation Act / [2] Article 4 (1) and (2) of the former Immigration Control Act (Amended by Act No. 10863, Jul. 18, 201); Articles 2 and 2-3 of the former Enforcement Decree of the Immigration Control Act (Amended by Presidential Decree No. 23274, Nov. 1, 201); Article 7-4 (1) of the former Enforcement Decree of the Immigration Control Act (Amended by Act No. 11605, Nov. 1, 201); Article 27 of the former Enforcement Decree of the National Tax Collection Act (Amended by Presidential Decree No. 23214, Jan. 1, 2016)

[1] Supreme Court Decision 2001Du3365 decided Jul. 27, 2001 (Gong2001Ha, 1993)

Plaintiff (Law Firm Ear, Attorneys Kim Jong-mun et al., Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul Regional Tax Office (Law Firm LLC, Attorneys So-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu43180 decided July 19, 2012

All appeals are dismissed. The costs of appeal are assessed against the Defendant and the Intervenor joining the Defendant.

The grounds of appeal by the Defendant and the Intervenor (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined together.

1. The citizen’s freedom of departure constitutes a fundamental right of freedom of residence and movement guaranteed by the Constitution. As such, restriction on such freedom shall be limited to the minimum necessary extent, and its essential contents shall not be infringed, and the interpretation and application of the provisions on prohibition of departure, such as the Immigration Control Act, should also be based on the same principle.

Article 4(1) of the former Immigration Control Act (amended by Act No. 10863, Jul. 18, 201; hereinafter “former Immigration Control Act”) and Article 1-3(2) of the Enforcement Decree thereof (amended by Presidential Decree No. 23274, Nov. 1, 201); and Article 1-3(2) of the Enforcement Decree thereof (amended by Presidential Decree No. 23274, Nov. 1, 201); a person who fails to pay national taxes, customs duties, or local taxes by the due date without justifiable cause may be prohibited from departing from the Republic of Korea for a specified period. However, the foregoing unpaid tax purpose is to prevent the unpaid taxpayer from departing from the Republic of Korea by taking advantage of his/her departure from the Republic of Korea, and thus, it is not to ensure voluntary payment of taxes by ensuring the unpaid taxpayer’s personal liberty or restricting his/her freedom of departure from the Republic of Korea. Therefore, the prohibition of departure without just cause and without just cause under the Constitution.

Furthermore, in determining whether property is likely to escape abroad, the discretionary authority should not be exceeded or abused (see Supreme Court Decision 2001Du3365, Jul. 27, 2001). Thus, the reason for tax delinquency, the age and occupation of a tax delinquent, economic activities, income level, and property status of a tax delinquent, the tax payment performance and tax collection execution process thereof, the history, purpose, period, and required amount of the previous departure from the Republic of Korea, the family relationship and family’s living level and property status, etc. should be compared and compared to the public interest to be achieved by prohibition of departure and the disadvantage to be suffered by the parties depending on the restriction on fundamental rights thereby, and the decision of prohibition of departure should be made within the reasonable discretionary authority.

2. The court below affirmed the judgment of the first instance court which held the disposition of this case unlawful on the ground that the disposition of this case was unlawful on the ground that the plaintiff's current position, past experience, and average 3-5 days stay period of the plaintiff's average is less than 3-5 days, considering the fact that the plaintiff's failure to pay national taxes exceeding 50 million won is recognized, but the tax authorities did not find the plaintiff's property in addition to the attached property despite the plaintiff's absence of any particular income source, but did not detect the plaintiff's property in addition to the attached property or reveal the circumstances that the plaintiff concealed or concealed the plaintiff's property overseas; the plaintiff's current position, past experience, and it is difficult to conclude that the plaintiff's departure is for the purpose of the escape of property overseas; and ③ even if the plaintiff denies the legitimacy of the disposition imposing national taxes, it is difficult to conclude that there is a concern for the plaintiff to escape property overseas on the ground that there is no particular income source; and ④ although the plaintiff appears to have been able to receive economic assistance from the plaintiff before his own independent life.

In light of the records, the above determination by the court below is justified in accordance with the above legal principles. Contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to deviation or abuse of discretionary power with respect to the requirements for prohibition of departure or prohibition of departure under Article 4 (1) 5 of the former Immigration Control Act.

3. The head of the central administrative agency, etc. may request the Minister of Justice to prohibit departure (Article 4(2) of the former Immigration Act), and the Commissioner of the National Tax Service, without any justifiable reason, shall request the Minister of Justice to prohibit departure when he/she deems that there is a possibility of evading the disposition on default by a person, etc., who has not less than 50 million won of national taxes in arrears, on at least three occasions during the last one year, on at least three occasions without justifiable grounds (Article 7-4(1) of the former National Tax Collection Act (Amended by Act No. 11605, Jan. 1, 2013); Article 10-5(1) and (2) of the Enforcement Decree thereof (Amended by Presidential Decree No. 23140, Sep. 16, 2011)).

However, in full view of the provisions of Article 4(1) of the former Immigration Control Act, Articles 2 and 2-3 of the Enforcement Decree thereof, the Minister of Justice may decide whether to issue a request for prohibition of departure without being bound by the Commissioner of the National Tax Service, etc., and whether the requirements for prohibition of departure are met. Therefore, the disposition of prohibition of departure is not unlawful as a matter of course on the grounds that the Commissioner of the National Tax Service, etc. failed to meet the requirements for the request for prohibition of departure, and whether the requirements for prohibition of departure, such as the possibility of flight abroad, etc.

The court below determined that the disposition of prohibition of departure of this case was unlawful as long as the request of prohibition of departure of this case cannot be deemed lawful since it completed a single legal effect as combined with the request of the Commissioner of the National Tax Service for prohibition of departure against the plaintiff. However, in light of the above legal principles, the court below's determination that this disposition of this case was unlawful. Therefore, the ground of appeal disputing this issue is justified. However, the court below's conclusion that this disposition of this case was unlawful, and therefore, the court below

4. Accordingly, all appeals filed by the Defendant and the Intervenor are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)