2018No2230 Performance of Official Duties by Fraudulent Means, Violation of Immigration Control Act

A

Defendant

Yellow jurisdiction, and trial at a fixed date.

Attorney B (Korean National Assembly)

Changwon District Court Decision 2018 Godan1799 Decided September 5, 2018

February 17, 2021

The part of the judgment of the court below against the defendant is reversed.

The defendant shall be exempted from punishment.

1. Summary of the grounds for appeal;

A. Legal principles

Since the defendant was recognized as a refugee, the defendant's punishment should be exempted.

B. Unreasonable sentencing

The punishment of the court below (two years of suspended sentence for one year of imprisonment) is too unreasonable.

2. Judgment on misapprehension of legal principles

Comprehensively taking account of the following circumstances acknowledged by the court below and the evidence duly admitted and examined by the court below, the defendant is deemed to have satisfied the requirements prescribed in the proviso of Article 31 subparagraph 12 of the Convention on the Status of Refugees (the Convention 1). Article 99-2 of the Immigration Control Act which reflects the purport of Article 31 subparagraph 12 of the Convention on the Status of Refugees provides for the exemption of a refugee from punishment for a certain case. Thus, the defendant's assertion of the misapprehension of the legal principle is justified.

A. On March 3, 2016, the Defendant entered the Republic of Korea with a short-term visit (C-3) sojourn status on March 3, 2016, and applied for refugee status to the head of the Seoul Immigration and Foreigners’ Office on March 21, 2016. The head of the Seoul Immigration and Immigration Office rendered a decision to deny refugee status to the Defendant on August 23, 2017. The Defendant dissatisfied with the decision and filed an objection with the Minister of Justice on September 11, 2017, but the Minister of Justice dismissed the Defendant’s objection on June 12, 2018.

B. On September 7, 2018, the Defendant filed an administrative suit with the Seoul Administrative Court No. 2018Gudan70571 seeking the revocation of the foregoing decision of non-recognition of refugee status. On August 30, 2019, the above court rendered a judgment accepting the Defendant’s claim on September 13, 2020 on the following grounds: (a) as a foreigner who has a well-founded fear that the Defendant would be subject to gambling on the ground of the opening of the new state of the new state of the new state of the new state of the new state of the new state of the foreigner; and (b) as the appeal and appeal by the head of the Seoul Immigration and Immigration Office were dismissed, the above judgment became final and conclusive on November 13, 2020.

C. Comprehensively taking account of the following circumstances, the Defendant is deemed to have satisfied the requirements for exemption from punishment under the proviso to Article 31(1) of the Convention on the Status of Refugees.

1) On March 3, 2016, the Defendant filed an application for refugee status with the Seoul Immigration Office on the 21st day of the same month, which was long long after entering the Republic of Korea. The Defendant was arrested on July 17, 2018 as an offense of obstruction of the performance of deceptive scheme and the violation of the Immigration Control Act. In this case, the Defendant’s objection against the decision to deny refugee status was dismissed. There was no evidence to acknowledge that the Defendant’s whereabouts were unknown during the period from entry into the Republic of Korea to around that time, or that the Defendant refused to appear at the State agency’s request. The Defendant was released from the Defendant on September 5, 2018 by being sentenced to one year of a suspended sentence of imprisonment at the lower court, and was present at the trial of the

2) According to the current immigration-related system, if a foreigner enters Korea in a country other than a visa exemption country, there seems to be no system that can obtain a visa for the purpose of applying for refugee status from the beginning. If a defendant applies for a visa from the beginning for the purpose of applying for refugee status from the beginning, there is concern that if the defendant applies for a visa from the beginning, he would be exposed to personal dangers, such as persecution for religious reasons. Therefore, the defendant was difficult to apply for a visa from the beginning. Therefore, it is determined that the defendant was more safe and easy to enter Korea with a short-term visa (C-2) for which he had been issued at the time of entering Korea prior to the instant case, and that the defendant was issued a visa for purposes other than the actual purpose of entry.

3) According to the judgment of the above administrative litigation, the statement of opinion dated January 31, 2018 at the Eunpyeong Hospital in Seoul Special Metropolitan City, which provided the defendant's medical treatment, stated that the name of the defendant's sick person is "a clinical disability presumption" and as a result of the treatment in the future, "the patient's report begins with symptoms, such as re-experience, unfold, uneasiness, and anxiety, which began after being adviserd in the patient's report, and continues to exist during the outpatient treatment from September 25, 2017, and thus continuous mental medicine and interview treatment in the future are considered to be necessary." The defendant was arrested and detained in the same way as the times of his/her entrance into Korea around August 2015, he/she appears to have been illegally asserted or raised by his/her religious opinion about the criminal defendant's death or intimidation in Korea."

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the following is ruled again.

【Grounds for a new judgment against the defendant】

Criminal facts and summary of evidence

Since the facts charged by this court against the defendant and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 94 subparag. 3 and 7-2 subparag. 2 of the former Immigration Control Act (amended by Act No. 17089, Mar. 24, 2020); Article 30 of the Criminal Act; Articles 137 and 30 of the Criminal Act (amended by Act No. 17089, Mar. 24, 2020);

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Imprisonment Selection

1. Exemption from punishment;

Article 31 subparag. 1 of the Convention on the Status of Refugees

The presiding judge and judges;

Judges Kim Young-gu

Judges Gyeong-hee

1) Korea joined the above Convention on November 11, 1992 through the consent of the National Assembly on December 3, 1992, and the above Convention came into force on March 3, 1993 by the Multilateral Treaty No. 1166. Accordingly, the above Convention has the same effect as domestic law in accordance with Article 6(1) of the Constitution of the Republic of Korea.

(ii) Article 31: Refugees illegally located in the country of escape;

1.A Contracting State shall not impose, without permission, a penalty on a refugee who has been directly from a threatened territory in the meaning of Article 1 on the ground that he or she has entered or has illegally entered or has illegally entered or has been in the territory, provided that the refugee is placed without delay to the authorities and that the refugee has presented considerable reasons for an illegal entry or has illegally been in the territory.