Plaintiff (Attorney Kim Jong-ro, Counsel for the plaintiff-appellant)

The Minister of Justice

September 8, 2009

Seoul Administrative Court Decision 2009Guhap2016 Decided April 7, 2009

1. Revocation of a judgment of the first instance;

2. The defendant's disposition rejecting an application for naturalization made against the plaintiff on December 24, 2008 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff, a Korean national of the People's Republic of China (hereinafter "China"), entered the Republic of Korea on April 28, 2003 with his sojourn status of visit and residence (F-1), and was staying in the Republic of Korea on July 17, 2003 without returning home or extending the sojourn period even after the expiration of 60 days from July 17, 2003.

B. On March 12, 2004, the Plaintiff was employed in the two-day rest area and was used as cerebrovasculars, etc., and became a pension beneficiary due to industrial accidents. From February 5, 2005, the Plaintiff was staying in Korea with other status of stay (G-1) granted when there are grounds such as performance of litigation, disease, etc.

C. On October 7, 2008, the Plaintiff filed an application for simplified naturalization under Article 6 (1) 1 of the Nationality Act on the grounds that both of the Plaintiff’s parents were nationals of the Republic of Korea and had domicile in the Republic of Korea for not less than three years. However, on December 24, 2008, the Defendant rendered a disposition of denying the application for naturalization (hereinafter “instant disposition”) on the ground that the Plaintiff rendered on the ground that “other (G-1) sojourn status is a temporary sojourn status granted when it is deemed necessary for a foreigner who entered the Republic of Korea to temporarily stay in the Republic of Korea due to inevitable reasons (such as litigation, disease, etc.) incurred after entering the Republic of Korea.”

D. From October 8, 2008, the Plaintiff is staying in the Republic of Korea as an applicant for naturalization (F-1-2) from October 8, 2008.

[Reasons for Recognition] Evidence No. 1, Evidence No. 2-1, Evidence No. 1, and Evidence No. 1, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The meaning of the "person who has had a domicile in the Republic of Korea for at least three consecutive years" under Article 6 (1) of the Nationality Act does not have any ground to interpret that a person who has a specific sojourn status granted to the Republic of Korea shall reside in the Republic of Korea, and even other (G-1) sojourn status shall be deemed to have a domicile in the Republic of Korea if the person has lawfully obtained such status and resided in the Republic of Korea," and therefore, the plaintiff who has been living in the Republic of Korea continuously from February 5, 2005 to the time of application for simplified naturalization under the above provision constitutes "a person who has a domicile in the Republic of Korea for at least three consecutive years" under the above provision.

Therefore, the disposition of this case by the Plaintiff on the ground that it did not meet the residency requirements stipulated in Article 6(1) of the Nationality Act is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 4 of the Nationality Act provides that a foreigner who does not have a nationality of the Republic of Korea may obtain nationality of the Republic of Korea by obtaining permission for naturalization from the Minister of Justice. The Minister of Justice shall determine whether an applicant for naturalization satisfies the requirements for naturalization under Articles 5 through 7 of the same Act, and then allow naturalization if the applicant is recognized as a person meeting the requirements. The naturalization system is a system that grants a national of the Republic of Korea to a foreigner who satisfies the requirements under domestic law regardless of prior acquisition of nationality. Thus, determining the requirements for naturalization is 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, as long as the requirements are prescribed by law, the requirements for naturalization must be clearly and strictly interpreted and applied because it has a very large impact on the rights and obligations of the citizen of the Republic of Korea depending on whether he is qualified as a national of the Republic of Korea. If a foreigner meeting all the requirements prescribed by law, the Minister of Justice must permit naturalization under Article 4 of the Nationality Act.

In full view of the aforementioned legal principles, Article 4(1) of the Enforcement Decree of the Nationality Act, Articles 10(1), 24(1), 25, 31, 46, 67, 68, 94, and 95 of the Immigration Control Act, the scope of “a person who has an address in the Republic of Korea for at least three consecutive years” as a requirement for simplified naturalization under Article 6(1) of the Nationality Act does not include any foreigner who has been staying in the Republic of Korea for at least three consecutive years in violation of the relevant domestic Acts and subordinate statutes, such as the Immigration Control Act. However, if a person has been lawfully granted a lawful status of stay in the Republic of Korea and has a place based on his living in the Republic of Korea for at least three years, the case constitutes such a person’s sojourn status. In addition, in calculating the period of his domicile under the above provision, if the person is legally qualified to stay in the Republic of Korea, it is difficult to require such a specific type of sojourn status to be granted, regardless of what kind of industrial accident occurred.

(2) In this case, the plaintiff legally obtained the status of stay for visiting and staying (F-1) from the Government of the Republic of Korea on April 28, 2003, and the fact that the plaintiff continues to reside in the Republic of Korea until the time of the application for simplified naturalization with the status of stay from May 2, 2005 to other (G-1) sojourn status is as seen above. Since it is apparent that the above period of stay of the plaintiff is more than three years, the plaintiff is a person who has a domicile in the Republic of Korea for not less than three consecutive years as stipulated in Article 6 (1) of the Nationality Act.

(3) Therefore, the disposition of this case by the defendant on the ground that the plaintiff did not meet the requirements stipulated in Article 5 subparagraphs 3 through 5 of the Nationality Act with respect to the plaintiff's application for permission of simplified naturalization, on the ground that the plaintiff did not meet the requirements stipulated in Article 5 subparagraphs 3 through 5 of the Nationality Act, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it shall be accepted, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition by accepting the plaintiff's appeal and accepting the plaintiff's claim.

Judges Yoon Jae-ho (Presiding Judge) (Presiding Judge)