[1] The meaning of "spouse" under Article 12 [Attachment 1] of the Enforcement Decree of the Immigration Control Act, and the standard for determining whether a marriage is established when a citizen of Korea is married with a foreigner in Korea (=Korean law)

[2] The case holding that in a case where the head of immigration office rejected the application for alteration of status of stay on the ground that the applicant for alteration of status was not only a formal requirement but also a true marital life because he did not submit a valid marriage certificate under the law of the domicile of Pakistan to the citizen Gap who married with the citizen Gap of the Republic of Korea, the above disposition is based on mistake of fact and is unlawful because it is based on mistake of fact,

[1] In light of the legislative intent of Article 10(1) of the Immigration Control Act and Article 12 of the Enforcement Decree of the Immigration Control Act, the term “spouse” under Article 12 [Attachment Table 1] of the Enforcement Decree of the Immigration Control Act means a foreigner recognized to have been married with a citizen of Korea under the laws of the Republic of Korea, and does not mean a foreigner recognized to have been married with a citizen of Korea under the laws of the Republic of Korea. In addition, under the proviso of Article 36(2) of the Act on Private International Law, in a case where a national of Korea is married with a foreigner in Korea, the method of marriage is governed by the laws of the Republic of Korea. According to Article 812(1) of the Civil Act, in a case where a marriage is reported to a family register office as prescribed by the Act on the Registration, etc. of Family Relationship if a national of Korea is married with a foreigner in Korea, the marriage is established by filing a report to the family register office as prescribed by the Act on the Registration, etc. of Family Relationship. According to Article 36(1) of the Private International Act, the nationality of each party.

[2] In a case where the head of immigration office rejected the application for alteration of status for reasons that the applicant for alteration of status did not meet the formal requirements because he did not submit a valid marriage certificate under the law of the domicile of Pakistan to the national of the Republic of Korea with the national of the Republic of Korea, and did not lead a true marital life, the case holding that the above disposition is unlawful because it is based on mistake of facts, since it is reasonable to view that Eul constitutes the spouse of the national of the Republic of Korea at the time of the disposition and there was a true marital relationship between Gap and Eul, in light of all circumstances

[1] Article 10(1) of the Immigration Control Act, Article 12 [Attachment 1] of the Enforcement Decree of the Immigration Control Act, Article 36(1) and (2) of the Private International Act, Article 812(1) of the Civil Act / [2] Articles 10(1) and 24 of the Immigration Control Act, Article 12 [Attachment 1], Articles 30 and 33 of the Enforcement Decree of the Immigration Control Act, Article 36(1) and (2) of the Private International Act, Article 812(1) of the Civil Act, Article 27 of the Administrative Litigation Act

Plaintiff (Law Firm Gyeong-Gyeong, Attorney Choi Woo, Counsel for the plaintiff-appellant)

Head of Daegu Immigration Office

March 21, 2012

1. The Defendant’s rejection of the disposition, such as the extension of the period of stay, against the Plaintiff on June 10, 2011, is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On September 12, 2005, the Plaintiff’s nationality entered the Republic of Korea as a non-professional employment visa (E-9-2) on September 12, 2005, and left the Republic of Korea on August 23, 2008. On October 9, 2008, the period of sojourn was extended by October 8, 201.

B. On December 29, 2010, the Plaintiff filed a marriage report with Nonparty 1, who is a national of the Republic of Korea, and on January 12, 201, filed an application with the Defendant for changing the status of stay to the qualification of a citizen’s spouse (F-2). However, the Defendant rejected the application on June 10, 201 on the ground that the Plaintiff did not submit a valid marriage certificate under the law of nationality of Pakistan, and that the Plaintiff did not meet the formal requirements, and that Nonparty 1 did not live a genuine marital life as a result of the fact-finding survey (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 4, 6, Eul evidence 1 to 4, the purport of the whole pleadings

2. The plaintiff's assertion

Since the Plaintiff is a genuine marital life with Nonparty 1, the instant disposition is unlawful as it deviates from and abused the scope of discretion.

3. Relevant statutes;

[Attachment] The entry in the relevant statutes is as follows.

4. Determination

A. In light of the forms and text of Articles 10(1), 24 of the Immigration Control Act, Articles 12, 30, and 33 of the Enforcement Decree of the same Act, and the upper limit of the scope of activities or the period of sojourn that a foreigner can implement in the Republic of Korea depending on the status of sojourn, etc., whether to grant permission to change the status of sojourn constitutes a discretionary act. Meanwhile, the court’s judicial review on discretionary act is conducted on the basis of mistake of facts, violation of the principle of proportionality and equality, violation of the purpose of the act in question, or the wrongful motive, etc. However, if the court’s review of discretionary act is deemed based on misunderstanding of facts, etc., it is deemed that the discretionary act of an administrative agency is based on misunderstanding of facts as a result of the court’s review, it is an abuse of discretionary power, and thus, it shall not be revoked (see Supreme Court Decision 9Du8589, Jul.

In light of the legislative intent of Article 10(1) of the Immigration Control Act and Article 12 of the Enforcement Decree of the same Act, the term “spouse” under Article 12 [Attachment 1] of the Enforcement Decree of the Immigration Control Act means a foreigner who is recognized to have been married to the nationals of Korea under the laws of Korea, and it does not mean a foreigner whose marriage is recognized to have been married to the nationals of Korea under the law of his own country.

In addition, according to the proviso of Article 36(2) of the Private International Act, in cases where a citizen of Korea is married to a foreigner in Korea, the method of marriage is governed by the law of Korea, and according to Article 812(1) of the Civil Act, the marriage is effective upon reporting to the family register office as prescribed by the Act on the Registration, etc. of Family Relationship. Thus, in cases where a citizen of Korea is married to a foreigner in Korea, the marriage is established upon reporting to the family register office as prescribed by the Act on the Registration, etc. of Family Relationship. According to Article 36(1) of the Private International Act, the requirements for establishment of marriage are governed by the law of nationality of each party, so if a citizen of Korea is married to

B. In light of the following circumstances, the evidence Nos. 3 through 8, evidence Nos. 12 through 19, evidence Nos. 8, 16, and 17, and evidence Nos. 8, 16, and 17, and the witness’s testimony as a whole, it is reasonable to deem that the Plaintiff constitutes a non-party No. 1’s spouse who is a national of the Republic of Korea at the time of the instant disposition and the real marital relationship existed with the non-party No. 1, and thus, the instant disposition is unlawful,

(1) On December 25, 2010, the Plaintiff and Nonparty 1 reported marriage to the family register office of Korea on December 29, 2010 in accordance with the form of a marriage report under the Act on the Registration, etc. of Family Relationship. The marriage certificate (Evidence A) issued by Daegu Mussa and the International Marriage Certificate (Evidence A, Evidence A 13) confirmed by the Pacific Embassy in Korea. On November 28, 201, after the instant disposition, the Plaintiff and Nonparty 1 registered marriage to the Pakistanan Office on November 28, 201 (Evidence A6 and Evidence 17).

(2) The Plaintiff and Nonparty 1 continued to live in the Republic of Korea after marriage, and the Defendant’s fact-finding survey conducted on May 10, 201 had been at the latest at the time of marriage, and had the Plaintiff and Nonparty 1’s goods at his domicile.

(3) On February 22, 2010, the Plaintiff obtained unmarried and marital consent (No. 12) from the Plaintiff’s mother Nonparty 2 on February 22, 2010, the Plaintiff visited Nonparty 1’s parent and female mother’s house after marriage, and participated in Nonparty 1’s family meeting.

(4) The circumstance that the Plaintiff violated the Immigration Control Act by doing work at a place different from the designated place of work when obtaining entry permission does not directly relate to whether the Plaintiff and Nonparty 1 had a genuine marital life.

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Jin Sung-sung (Presiding Judge) Kim Jong-nam best