208Guhap211 The revocation of revocation of the recognition of North Korean defectors

000000

Minister of Unification

August 29, 2008

October 24, 2008

1. The defendant's rejection disposition against the plaintiff on May 13, 2008 against the plaintiff is revoked.

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

The order is as set forth in the text.

1. Details of the disposition;

On April 28, 2008, the Plaintiff filed an application for protection with the Defendant pursuant to Article 7(1) of the Act on the Protection and Settlement Support of Residents escaping from North Korea (hereinafter “North Korean Residents Protection Act”). On May 13, 2008, the Defendant responded to the Plaintiff on May 13, 2008 to the effect that the Plaintiff’s mother is a child born between China and China after escaping from North Korea, and thus, the Plaintiff is not a North Korean resident. (hereinafter “instant disposition”).

【Uncontentious facts, Gap 3 and 4, each entry of Gap 3 and 4

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

The plaintiff asserts that the disposition of this case in this case is unlawful on different premise since he himself has a lineal family A in North Korea and did not acquire the nationality of a foreign country after escaping from North Korea, it is against North Korean defectors under Article 2 subparagraph 1 of the North Korean Refugees Protection Act.

As to this, the defendant asserts that the plaintiff's birth of Chinese Chinese as his father and acquired Chinese nationality in China, and does not constitute North Korean defectors.

(b) Related statutes;

[Constitution of the Republic of Korea]

Article 3 The territory of the Republic of Korea shall be the Korean Peninsula and its accessory islands.

【Act on the Protection and Settlement Support of Residents escaping from North Korea】

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "residents escaping from North Korea" means those who have addresses, lineal ascendants and descendants, spouses, work places, etc. in North Korea;

any person who has not acquired foreign nationality after escaping from this chapter.

Article 7 (Application for Protection, etc.)

(1) Residents escaping from North Korea who intend to receive protection under this Act shall obtain overseas diplomatic missions or other administrative agencies.

The head of the Gu shall directly apply for protection (proviso omitted).

[Civil Code]

Article 844 (Presumption as Husband's Child)

(1) A person who is born by the wife during marriage shall be presumed to be a father.

(c) Facts of recognition;

1) B (Y00) and A are the North Korean residents of the Republic of Korea, who originally reside in the Hambuk-do XX 1992, married couple around 192.

2) From February 2, 1998, A was arrested in China and repatriated to North Korea once again after having been repatriated to North Korea on or around March 3, 2002. After escaping from North Korea on or around June 7, 2002, A resided with C (UO) who is a Chinese citizen in China in China, and gave birth to the Plaintiff at 00 hospital in the national way of the national route of 19 March 6, 2003.

3) A, upon being repatriated to North Korea on July 2003 with the Plaintiff, was repatriated to North Korea on September 2, 2003, and lived with B on September 2, 2004, and went outside of North Korea with the Plaintiff, and was living with D, a Chinese national from August 2, 2004 to March 2006.

4) A attempted to enter the Republic of Korea via Mongolia on March 2006, and was arrested and repatriated to North Korea at the same time. However, at the time, the Plaintiff was released from Mongolia to North Korea on August 21, 2006 by obtaining a personal identification card from the fifth degree X to "D's children", and was released, and entered the Republic of Korea from Mongolia on August 21, 2006.

5) According to the Chinese Nationality Law, "the parent or both parents are China, and the person born in China is defined as "the Chinese nationality."

【Ground of recognition】 Each entry of evidence of subparagraphs 1 through 3, witness Y's testimony, the purport of the whole pleadings

D. Determination

1) According to Article 3 of the Constitution of the Republic of Korea, the territory of the Republic of Korea is the Korean Peninsula and its accessory islands. Accordingly, North Korean residents, B and A have the status as a national of the Republic of Korea under our legal system, and pursuant to Article 844(1) of the Civil Act, the wife is presumed to be the father, and thus, the Plaintiff is presumed to be a child of B under the law.

In regard to this, the defendant alleged that A escaped from around February 1998 to around 2006 and was actually in a state of divorce in China, and thus, the above presumption was broken. However, in light of the fact that A was repatriated to North Korea around March 2002 and resided in North Korea from June 20 or July 2002, it is difficult to readily conclude that A was in a state of confusion with B at the time of the plaintiff's birth. Thus, the defendant's above assertion cannot be accepted.

2) Accordingly, the defendant claiming that the plaintiff is a child of Eul must prove that the plaintiff is not the plaintiff's child of Eul. The defendant asserts that ① the defendant is not the plaintiff's child of Eul: ① the defendant's statement, the only material evidence of the plaintiff's happiness, 'Y', 'B' around July 2002, 'B', and 'B' around August 2002, 'B', and 'Y', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', 'W', and 'W', 'W', 'W', 'W', of the plaintiff's personal affairs, entered the Republic of Korea.

However, considering all the above circumstances of the defendant's assertion, the following circumstances revealed from the overall purport of the above recognition and pleading, i.e.,, the plaintiff's guardian's identity guarantee by pretending the plaintiff's father to "D, Chinese, different from the facts," in order to prevent the plaintiff's escape around March 2006. In light of the above facts, the possibility that the plaintiff's father was disguised to "C, Chinese, China," even though the plaintiff's father was prevented from sending back to North in the event of the plaintiff's arrest, and the possibility that the plaintiff's father was disguised to "C, Chinese," and in this case, "D at the time of the plaintiff's arrival of his name was already entry into the Republic of Korea and did not have been transmitted to China." Thus, it is difficult to readily conclude that the plaintiff's father was not a woman of the plaintiff, in light of the fact that the plaintiff's father stated to the purport that the plaintiff's identity was clarified, and there was no evidence to deny the credibility of this statement.

3) Ultimately, the Plaintiff should be deemed to be the child of B. Furthermore, the Plaintiff, who is a lineal family member in North Korea, exceeded North Korea around March 2004, and there is no assertion or proof as to whether the Plaintiff acquired the nationality of a foreign country. Thus, the Plaintiff constitutes a North Korean refugee under Article 2 subparag. 1 of the North Korean Refugees Protection Act, and the disposition of the instant case was unlawful on a different premise.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition.

Judges Lee Dong-gu

Judge Lee Jin-soo

Judges Jeong Jong-do