(영문) 전주지방법원 2020.8.20.선고 2020구합487 판결

A. The Plaintiff, as a man of Vietnam’s nationality, entered the Republic of Korea with a visa issued on February 11, 2019 for short-term visit (C-3) by the husband of a female-born B (B and C) who is staying in Korea under the qualification of marriage immigration (F-6-1).

B. On March 21, 2019, the Plaintiff filed an application for change of the status of stay for visiting and accompanying (F-1-5) (F-1-5) with the Defendant to assist the Defendant in raising female children. Accordingly, on March 21, 2019, the Defendant rejected the Plaintiff’s application for change of the status of stay for visiting and accompanying (F-1). On March 21, 2019, the Defendant: (a) on the ground that the Plaintiff was absent from the marriage, and the Plaintiff did not have the eligibility for the visit and accompanying (F-1) whose parents and family members are married by marriage (F-1).

[Ground of recognition] Facts without dispute, entry of Eul's evidence Nos. 1 through 6, purport of the whole pleadings

2. Whether the non-permission disposition of this case is legitimate

A. Summary of the plaintiff's assertion

On April 8, 2019, a woman married with Korean and her mother gave birth to her mother in the Republic of Korea on or around April 8, 2019. A woman living together with her mother has been in need of nursing for at least one year after her surgery, and at the same time, her mother and her mother have been in a bad condition. However, her mother died in the past, and another woman living in the Republic of Korea after her marriage with other Korean nationals, and her mother living in the Republic of Korea is not likely to be able to her mother and her mother who has recently given birth of her mother and her mother on behalf of another her family as mentioned above on the ground of her own family type and health. Accordingly, in order to care for her woman and her mother who has recently given birth on behalf of the other her family, it is difficult to deny the Plaintiff's application for change of her status of stay to the Defendant as such need exists and thus, the Plaintiff's application for change of her status of stay should be rejected.

B. Relevant statutes

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

C. Determination

1) Permission to change the status of stay prescribed by the Immigration Control Act is a kind of permanent disposition that grants an applicant the authority to engage in activities that differ from the initial status of stay. Even if an applicant satisfies the requirements prescribed by the relevant statutes, the permitting authority has discretion to determine whether to grant such permission, taking into account the applicant’s eligibility, purpose of stay, influence on the public interest, etc. Therefore, it cannot be deemed as deviation or abuse of discretionary authority, barring special circumstances, such as where the applicant’s exercise of discretion is seriously erroneous in fact-finding, or undermine the principle of proportionality and equality in terms of social norms, or significantly lose validity (see, e.g., Supreme Court Decision 2015Du4846, Jul. 14, 2016). Meanwhile, if an alien staying in the Republic of Korea falls under the status of stay different from his/her original status of stay, the permission to change his/her status of stay in Korea should be obtained prior to the expiration of the period of stay (Article 24(1) of the Immigration Control Act).

2) In light of the following circumstances, it is difficult to see that the instant non-permission disposition was an unlawful act of deviation from or abuse of discretion, and there is no other evidence to acknowledge otherwise.

① The subject of the status of stay for the visit and movement (F-1-5) requested by the Plaintiff is limited to one woman by blood between 18 and 4 years of age if the marriage is not the parents of the people, but the same is limited to one woman by blood within 18 and 4 years of age. The Plaintiff does not fall under the male gender law.

② To restrict the eligibility for status of stay as above, the relevant provisions aim at preventing the indiscreet long-term stay of immigrants' families and preventing abuse of the said status of stay for illegal employment, etc., and there is no special ground to deem such restriction unreasonable.

③ Even if the sojourn management guidelines are merely an administrative agency’s business performance rule, i.e., the Plaintiff’s female members who need childcare support, etc., are in addition to the Plaintiff, there are other words F (G) residing in Vietnam as well as those who actually stay in Korea, and there are no specific circumstances to deem that they are unable to provide childcare support, etc. to female members, it is difficult to evaluate that the Defendant’s refusal of the instant disposition is unreasonable in accordance with the above guidelines.

④ In particular, there is no specific circumstance to deem that the Plaintiff had been practically assisted in the birth or rearing of female children since entering the Republic of Korea, and there is no material to deem that there is any humanitarian reason as seen above, such as that there is a serious disease or disability to the female couple or children, or that there is a woman living together with her husband or her mother, who is the Republic of Korea. On the other hand, it is difficult to deem that there is a need to stay in the Republic of Korea in order to support the female woman’s birth or rearing of her child.

3. Conclusion

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