Plaintiff (English name omitted) (Law Firm Sejong, et al., Counsel for the plaintiff-appellant)

Major consul General of Sgegegeles (Government Law Firm, Attorney Yju-ju, Counsel for the plaintiff-appellant)

January 19, 2017

Seoul Administrative Court Decision 2015Guhap7189 decided September 30, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's refusal to issue a visa against the plaintiff on September 2, 2015 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of this case lies on the following grounds: “The court shall separate entry into the Republic of Korea on No. 15 of the judgment of the first instance court,” and “The issuance of the visa may not be deemed as legally identical to the issuance of the visa because the procedure for the issuance of the visa is carried out in one document or one procedure, or the refusal of the issuance of the visa would result in the same result.” On the following grounds: “The law of overseas Koreans is a special law of the Immigration Control Act, and the application of the Immigration Control Act as it exceeds the purpose and purport of the Immigration Control Act to facilitate entry into and departure from the Republic of Korea.” However, in light of the language and purport of the Immigration Control Act and the Immigration Control Act, the law of overseas Koreans and the law of the Republic of Korea excludes the requirements for entry into and departure from the Republic of Korea to the minimum extent necessary for the issuance of the visa under Article 2 of the Immigration Control Act.”

2. The addition;

A. The Plaintiff asserts that the decision should be made on the basis of the time when the measure of prohibition against entry prohibition was taken, but whether the measure of prohibition against entry prohibition was unlawful should be determined on the premise that the measure of prohibition against entry prohibition was maintained for at least 14 years, i.e., the period that elapsed at the time of the refusal of the instant case. Considering this point, the Plaintiff

However, in light of the circumstances and purposes of the instant measures to prohibit entry, the instant measures to prohibit entry cannot be deemed unlawful solely on the ground that the period of prohibition was not specified, since the necessity and reasonableness of the measures to prohibit entry can be sufficiently recognized without specifying the period of prohibition against the Plaintiff at that time, and thus, it cannot be deemed that there was any error in the instant measures to prohibit entry on the grounds that the period of prohibition was not specified. Furthermore, since the period of prohibition was not specified at the time of the instant measures to prohibit entry, it cannot be deemed that there was a possibility that the period of prohibition would continue for a long time as in the current situation, or that it could have been anticipated that the period of prohibition would continue,

The plaintiff's above assertion is not accepted.

B. Even if there is a defect as alleged by the Plaintiff in the instant disposition of entry prohibition, in light of the facts acknowledged earlier, it cannot be deemed that the defect was grave and obvious enough to cause the said disposition of entry prohibition to be null and void as a matter of course. Thus, the rejection of the instant disposition, which is a separate disposition, cannot be asserted as unlawful on the ground of the defect in the instant

As to this, the Plaintiff’s refusal of the instant measure constitutes exceptional cases where there is no possibility to dispute the illegality of the measure of entry prohibition itself, and thus, it is difficult to argue that the illegality of the instant refusal of the measure of entry prohibition is against the Plaintiff on the ground of the defect in the measure of entry prohibition. However, it is difficult to readily conclude that the measure of entry prohibition is not permissible, and it is difficult to expect an administrative appeal or administrative litigation separately regarding the above measure (see Supreme Court Decision 2012Du592, Feb. 28, 2013). The Plaintiff’s refusal of the instant measure of entry prohibition is not against the Plaintiff on the ground that the measure of entry prohibition was not dismissed in the lawsuit seeking revocation of the order of entry prohibition, and that the Plaintiff’s refusal of the instant measure of entry prohibition is not a new disposition expected pursuant to the instant measure of entry prohibition, and that the Plaintiff’s refusal of the instant measure of entry prohibition is an essential disposition that directly prevents entry into the Republic of Korea, and thus, it cannot be asserted that the Plaintiff’s refusal of the instant measure of entry prohibition constitutes an exceptional measure of entry prohibition under the Act.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit.

Judges Kim Jong-ju (Presiding Judge)