(영문) 서울행정법원 2014.8.28.선고 2014구합55540 판결

A. The plaintiff entered the Republic of China with a short-term comprehensive visa (C-3) on April 1, 200, as a foreigner of the nationality of the People's Republic of China (hereinafter referred to as "China"), and changed the status of stay to non-professional employment (E-9) in accordance with the measures of conformity with those who filed a voluntary report while making an illegal stay beyond the period of stay, but was discovered again after the expiration of the period of stay, and was forced to leave on January 13, 2005.

B. The Plaintiff, in China, entered the Republic of Korea on February 3, 2007 with a passport and a visa for short-term use (C-2) in the name of A (A, A, and D). On February 14, 2007, the Plaintiff applied for special naturalization under Article 7(1)1 of the Nationality Act (hereinafter “instant application for naturalization”) on the ground that her mother is a national of the Republic of Korea (hereinafter “instant application for naturalization”), and the Defendant permitted the Plaintiff’s naturalization on October 9, 2009.

D. On August 23, 2012, the Plaintiff entered in the corresponding column A, a false name, and D, a false date of birth, in the application for permission of naturalization, at the Seoul Immigration Office on February 14, 2007, without entering the fact that the Plaintiff entered the Republic of Korea on April 1, 2000 in the column for the residence period, and entered false facts as if he resided on February 3, 2007. The Plaintiff applied for permission of naturalization by submitting a transcript of the foreigner, etc. issued as above, Chinese passport, and resident identification card along with the above personal information, and on August 26, 2009, the Plaintiff acquired the nationality of the Republic of Korea on October 26, 2009 through an naturalization interview, etc., and was sentenced to six months of imprisonment with prison labor and two years of suspended execution, and the above judgment became final and conclusive on August 31, 2012 (Seoul District Court 201, 2013.21.31.

E. On March 12, 2014, the Defendant revoked permission for naturalization of the Plaintiff based on Article 21 of the Nationality Act and Article 27 of the Enforcement Decree of the same Act on the ground that “the acquisition of nationality of the Republic of Korea by submitting false documents related to his/her status” (see, e.g., evidence A; hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3, Eul evidence 4-1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The plaintiff's status relationship

The plaintiff's name is not "B," but "A," and the date of birth is not "C," but "D."

2) Non-existence of grounds for disposition

A) The grounds presented by the Defendant at the time of the instant disposition are as follows: (a) the Plaintiff constitutes a person whose conviction is finalized by forging or altering documents regarding the status relationship or by submitting forged or altered documents; (b) as seen earlier, the Plaintiff’s principal name is “A” and the date of birth is “D”; and (c) even if the Plaintiff obtained the Republic of Korea’s nationality by submitting an alien registration certificate, etc. stating such personal information, the Plaintiff did not acquire the Republic of Korea’s nationality by forging or altering documents regarding the relevant status relationship or by submitting forged or altered documents regarding the relevant status relationship.

B) After filing the instant lawsuit, the Defendant asserted to the effect that the Plaintiff was forced to enter the Republic of Korea with the above name passport and was found guilty of having been convicted of committing obstruction of the performance of official duties by fraudulent means. Thus, the Defendant did not meet the requirement of naturalization, and thus constitutes “persons with serious defects in the determination of permission of naturalization” under Article 27(1)4 of the Enforcement Decree of the Nationality Act. However, such circumstance is not recognized to have the identity of the grounds for the instant disposition and basic factual relations, and thus, it cannot be added as a new ground for disposition.

(iii) deviation from and abuse of discretionary power;

The Plaintiff’s issuance of illegal stay with a passport issued in the name of “B” is closely related to the government policy of the Republic of Korea that excessively regulated only the entry into the Republic of Korea, not treating overseas Koreans on an equal basis without relation to their nationality, and thus, it cannot be entirely attributable to the Plaintiff’s mistake. In addition, if the instant disposition is not revoked, the Plaintiff’s her her her her her her her her her her son who acquired the Republic of Korea nationality as a national of the Republic of Korea would lose the nationality of the Republic of Korea, the Plaintiff’s her her her her her her her her her spouse who applied for the status of permanent stay as a national of the Republic of Korea would be unable to obtain the status of permanent stay, and all her her

It is as shown in the attached Form.

C. Determination

1) The plaintiff's status relationship

Considering the above facts, Gap's evidence Nos. 3 through 11, 15 through 18 and the following circumstances, i.e., the certificate (Evidence No. 3) submitted by the plaintiff, the photograph of the person presumed to be the plaintiff is attached, the birth month of the person to be proved is September 1956, and the plaintiff's service was 59241 units in the Chinese People's Republic of China from January 1, 1975 to April 1, 1978, ② marriage evidence Nos. 10, 30 (Evidence No. 5) submitted by the plaintiff was stated as the marriage with Eul 24 years old, 24 years old, 14 years old, 5 years old, 5 years old, 5 years old, 5 years old, 5 years old, 4 years old, 5 years old, 5 years old, 1 year old, 5 years old, 5 years old, 1 year old, 1 year old, 3 years old, 4 years old, and 5 years old, 1.

(ii) the existence of the reasons for the action

A) First, we examine whether the instant disposition ground is limited to the Plaintiff’s “a person for whom the judgment of conviction became final and conclusive by forging or altering evidentiary documents regarding his/her status or by submitting forged or altered evidentiary documents,” based on Article 27(1)1 of the Enforcement Decree of the Nationality Act, as alleged by the Plaintiff.

In addition to the facts acknowledged earlier, Gap evidence Nos. 1, 2, and Eul evidence No. 2, the following circumstances, namely, ① The Disposition No. 2 (Evidence No. 2) contains "acquisition of nationality of the Republic of Korea by submitting false identification-related documents" as the ground for disposition, and Article 21 of the Nationality Act and Article 27 of the Enforcement Decree of the same Act "Article 27 of the Enforcement Decree of the same Act" as the grounds for disposition. According to the Ministry of Justice's notification No. 2014-077 of the Ministry of Justice on March 12, 2014, the purport of revoking permission for naturalization is stated that the plaintiff's acquisition of nationality with false personal information constitutes "a person whose conviction has become final and conclusive" under Article 21 of the Nationality Act. ② The plaintiff was forced to stay in the Republic of Korea after entering the Republic of Korea on Apr. 1, 200 and submitted the plaintiff's application for permission for naturalization with the defendant's statement of the above facts concerning naturalization No. 27.

In light of the above circumstances, it is difficult to view that the disposition of this case merely constitutes a ground for disposition where the Plaintiff was convicted by submitting forged or altered Chinese passport, resident identification card, etc. to prove that he/she was A (D). In addition, it is reasonable to deem that the Plaintiff was a ground for disposition even when he/she had been forced to stay after entering the Republic of Korea on April 1, 200, and the Plaintiff had the history of forced departure while making a false entry as to it, even if he/she had been forced to leave.

Therefore, the Plaintiff’s assertion on this part is difficult to accept.

B) Even if the Plaintiff’s assertion, based on Article 27(1)1 of the Enforcement Decree of the Nationality Act, limited to cases where the Plaintiff’s ground for disposition in this case constitutes “a person for whom the judgment of conviction became final and conclusive by forging, altering, forging, or submitting forged or altered evidentiary documents regarding his/her status,” the Defendant had the record of being forced to stay in Korea after entering the Republic of Korea using a passport in the past name B, and the Defendant again obtained the nationality of the Republic of Korea by entering the Republic of Korea with a passport in the name A, thereby having received a final and conclusive judgment of conviction. As such, the Plaintiff failed to meet the requirements of “the final and conclusive judgment of naturalization” under Article 5 subparag. 3 of the Nationality Act, and thus, constitutes “a person who has any defect in the permission of naturalization” under Article 27(1)4 of the Enforcement Decree of the Nationality Act. Accordingly, this constitutes a case where the Plaintiff’s submission of false documents regarding his/her status constitutes “a person who has acquired the nationality of the Republic of Korea by submitting the documents related to his/her status.”

C) However, it is reasonable to view that the Plaintiff’s act of good conduct is not reasonable inasmuch as he/she was convicted by acquiring the nationality of the Republic of Korea by hiding his/her illegal stay and force of deportation and submitting evidentiary documents regarding his/her personal status, and that such circumstance constitutes a case where there is a serious defect in the determination of permission of nationality with respect to the Plaintiff, and thus, the grounds for the instant disposition

3) Whether the discretionary authority is deviates or abused

A) Article 21 of the Nationality Act provides that the permission or adjudication of a person who obtained permission for naturalization may be revoked by fraud or other improper means, and it is apparent that the defendant has discretionary power over the revocation of permission for naturalization in the form and content of language and text. Furthermore, nationality is determined by determining the qualification of a citizen. Since a person who acquired such nationality becomes a sovereign of the State at the same time as a sovereign of the State, the permission for naturalization constitutes an act of comprehensively establishing a legal status as a citizen by granting the nationality of the Republic of Korea to a foreigner. In light of the meaning of such nationality, contents and characteristics of permission for naturalization, and the form and text of the provision on the grounds for revocation of permission for naturalization, it is reasonable to view that the Minister of Justice has discretionary authority over whether to revoke permission for naturalization as well as permission for naturalization (see Supreme Court Decision 2010Du6496, Oct. 28,

B) Based on the above legal principles, the following facts can be seen in addition to the overall purport of argument as to this case. ① The plaintiff entered the Republic of Korea using a passport whose initial name was 'B' and the date of birth was 'C' and was forced to depart from the Republic of Korea, and thus, the degree of illegality is not weak. ② If the defendant could have grasped the plaintiff's illegal stay and forced departure from Korea at the time of permission for naturalization, it seems that the plaintiff did not obtain permission for naturalization. ③ Ultimately, the plaintiff could not obtain permission for naturalization if the defendant could have grasped the plaintiff's illegal stay and forced departure from Korea at the time of permission for naturalization, ③ It is difficult to consider that the plaintiff entered the Republic of Korea with a passport with the name and date of birth 'B' and it was impossible to re-entry for 2 years after forced expulsion, and thus, the plaintiff appears to have applied for naturalization in this case under the name of 'A', and ④ even if the defendant claimed to comprehensively grant permission for naturalization from the Republic of Korea, it is difficult to consider the legal nature of the issue of permission for naturalization.

4) Sub-determination

Ultimately, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.