(영문) 대법원 2016.9.23.선고 2015두54629 판결

The part of the judgment of the court below concerning the order for departure shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

Reasons

The grounds of appeal are examined.

1. As to the disposition for departure order

(1) citing the reasoning of the first instance judgment, the lower court: (a) determined that Plaintiff B was a ship of the nationality of the People’s Republic of China (hereinafter referred to as “China”); (b) was born between Plaintiff B and Nonparty C on April 1, 198; and (c) Plaintiff A entered the Republic of Korea on August 3, 2004 as the status of stay for visiting Korea on June 18, 2008 (H-2); and (d) applied for a change of the status of stay for Plaintiff B-1’s permanent residence (F-2) on May 9, 2011 to obtain permission for change of the status of stay for Plaintiff B-1’s permanent residence on May 201, 201, and (e) obtained permission for extension of the stay period on May 1, 2012 and the status of stay for Plaintiff B-1’s permanent residence (hereinafter referred to as Plaintiff F-1’s permanent residence status as Plaintiff C-1’s permanent residence).

In addition, based on the reasoning of the judgment of the court of first instance, the court below rejected the plaintiffs' assertion that the plaintiff Eul submitted a false document as the plaintiff Eul's friendship and invited the plaintiff Eul, and the plaintiff Eul entered the Republic of Korea using the above-name passport under the name of "B" without undergoing lawful procedure for opening the name. Thus, the disposition of this case is judged to have a legitimate ground for disposition, and where the plaintiff Eul moved a minor child born between the former spouse in China and re-enters the former spouse and then re-enters the former head of the family, the separate procedure for opening the name and the adoption procedure would only be necessary, and thus, the plaintiff's assertion that the plaintiff was erroneous in the disposition of this case under the premise that the plaintiff Eul did not undergo legitimate procedure for opening the name and the entry.

(2) However, it is difficult to accept the above determination by the lower court.

기록에 의하면, 원고 B가 2010. 11. 5. D의 초청으로 한국에 입국하기 전인 2006. 9. 19. 중국에서 작성된 D의 호구부에는 원고 B가 '장자'로 기재되어 있고, 2007. 9. 10. 중국에서 작성된 원고 B의 호구부에는 원고 B의 예전 이름으로 'E'이 기재되어 있는 사실, D는 출입국관리사무소에서 조사받으면서 '2006년경에 자신과 원고들을 한 호구로 묶을 때 원고 B를 아들로 등재했다', '원래 원고 B의 본명은 E이었는데 소학교 진학할 때 F으로 성씨를 바꿨고, 그 때 자신이 원고 B의 부친이라고 하여 성씨를 바꾸는 것에 동의해 주었다'라는 취지로 진술한 사실, 원고들은 원심에서 '중국에서 전 배우자와의 사이에 출생한 미성년 자녀를 데리고 재혼하여 새로 호구부를 만드는 경우 별도의 개명절차와 입양절차가 필요하지 않고 호구부 작성에 수반하여 당사자들의 개명의

In order to prove that there is a Chinese positive law and its enforcement practice as alleged, the court below rejected the plaintiffs' assertion after closing the argument without accepting it.

However, a minor born between the former spouse and the former spouse in China, as alleged by the Plaintiffs.

The fact that China's positive law and its enforcement practices exist that "in case of making a new family register by making a female, it would be necessary to confirm the names of the parties and their will to be adopted by accompanying the preparation of the family register without requiring separate procedures for opening the family register and the adoption procedures," and if it is proved that there was confirmation on the names of the plaintiffs, D, and their intent to adopt the family register as above, the instant disposition may not be recognized as the grounds for the disposition.

In such a case, the lower court should have given the Plaintiffs an opportunity to prove the existence of the positive law and its enforcement practices as alleged by the Plaintiffs, as well as whether there was a confirmation of the Plaintiffs and D’s intention to adopt a new name and intent to adopt a family register as above. Nevertheless, the lower court did not reach this conclusion and rejected the Plaintiffs’ assertion on the grounds of its stated reasoning, but did not accept the request for inquiry of the facts pertaining to the Plaintiffs. In so determining, the lower court erred by misapprehending the legal doctrine on the grounds for disposition of departure order, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

2. As to the non-permission of change of status of sojourn

The Plaintiffs appealed to the entire judgment of the court below in the petition of appeal of this case, but no grounds of appeal are stated in the appellate brief as to the non-permission of change of status of stay, and no grounds of appeal are stated in the petition of appeal.

3. Conclusion

Therefore, the part of the judgment below concerning the order for departure is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.