[1] The case affirming the judgment below which held that a person who acquired the nationality of North Korea under the North Korean law after acquiring it is a national of the Republic of Korea and obtained the certificate of foreign citizenship at the North Korean Embassy stationed in China

[2] The requirements for deportation under Article 46 of the Immigration Control Act and the burden of proof

[3] Requirements and criteria for a defective administrative disposition to be null and void as a matter of course

[1] The case affirming the judgment of the court below which held that a person who was born with a ship's reference shall acquire a Korean nationality in accordance with the provisions of the Provisional Ordinance on the Nationality No. 11 of South and North Korean Government, but acquired a Korean nationality at the same time as the promulgation of the Constitution of the Republic of Korea, and even if he acquired a North Korean nationality in accordance with the provisions of North Korean law and was issued a North Korean citizenship from the North Korean Embassy stationed in China, North Korea constitutes part of the Korean Peninsula, and thus, the Republic of Korea's sovereignty is merely a part of the Korean Peninsula, and it cannot be recognized in light of the legal principles that a country, organization, or share certificate against the Republic of Korea may not affect its acquisition and maintenance of the Korean nationality.

[2] An alien under the Immigration Control Act must be determined to be a foreigner who has no nationality of the Republic of Korea from the Republic of Korea by the other party to forced expulsion. Accordingly, even if a citizen stationed abroad had a passport of another country and entered the Republic of Korea, as long as he had been the first citizen of the Republic of Korea, the fact that he/she held a passport of another country does not merely mean that he/she acquired the nationality of the country or should be presumed to have lost the nationality of the Republic of Korea. Thus, barring any special circumstances, a disposition authority such as the head of the competent foreigner internment camp must prove that a citizen stationed abroad who entered another country's passport has acquired the nationality of the country or is a foreigner who lost the nationality of the Republic of Korea.

[3] In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law, and it should be objectively clear. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself.

[1] Article 2 subparagraph 1 of the Provisional Ordinance on Nationality (Act No. 11 of May 11, 1948), Article 3 and Article 100 of the Constitution (Constitution of July 17, 1948), Article 2 (1) of the Nationality Act / [2] Article 46 of the Immigration Control Act / [3] Article 1 of the Administrative Litigation Act / [3] Article 1 of the Administrative Litigation Act, Article 19 of the Constitution

[3] Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995 (Gong1995Ha, 2633), Supreme Court Decision 94Nu5694 delivered on August 22, 1995 (Gong1995Ha, 3132), Supreme Court Decision 95Nu414 delivered on February 9, 1996 (Gong196Sang, 96666)

[Judgment of the court below]

Seoul immigration detention center

Seoul High Court Decision 94Gu16009 delivered on December 8, 1995

All appeals are dismissed. The costs of appeal are assessed against each party.

1. First, we examine the grounds of appeal by the defendant litigation performer.

A. According to the reasoning of the judgment of the court below, the plaintiff was born on March 17, 1937 with his father's 1 and her mother's 15 Gwangju-gun's Do government's 7th anniversary of the fact that the plaintiff was born on March 17, 1937 with his 197 North Korean government's 1999 North Korean government's 197 North Korean government's 197 Chinese government's 197 Chinese government's 9th Korean government's 197 Chinese government's 197 Chinese government's 9th Korean government's 197 Chinese government's 9th Korean government's 197 Chinese government's 197 Chinese government's 197 Chinese government's 197 Chinese government's 197 Chinese government's 197 Chinese government's 197 Chinese government's 197 Chinese government's 195 Chinese government's 197 Chinese government's 1 Chinese government.

In light of the records and the provisions of relevant Acts and subordinate statutes, the above fact-finding and decision of the court below is just, and there is no error of law by misunderstanding the legal principles as to the Nationality Act.

In addition, since the North Korea's overseas colons (No. 4-1, 2, and 9-1) and China's foreign colons (No. 3-2) cited by the theory of lawsuit are obvious in the record that the defendant's authenticity is recognized, the court below's measures to find facts based on the above documentary evidences are proper and there is no violation of the rules of evidence, such as the theory of lawsuit. The arguments are without merit.

B. Article 46 of the Immigration Control Act limits a person eligible to be forced to be expelled from Korea to a foreigner who falls under a certain cause prescribed in each subparagraph of the same Article, and Article 2 subparagraph 2 of the same Article provides that a foreigner means a person who does not have the nationality of the Republic of Korea. In light of the purport of the above relevant provision, in order to make a foreigner who is prescribed by the Immigration Control Act to be forced to be expelled from Korea, the other party should be determined to be a foreigner who has no nationality of the Republic of Korea.

Therefore, inasmuch as it is acknowledged as stated in its reasoning that a citizen abroad possessed a passport of another country and entered the Republic of Korea, the fact that he was a national of the Republic of Korea does not merely mean that he acquired the country's nationality or is presumed to lose the nationality of the Republic of Korea. Thus, barring any special circumstances, it should be proved by the head of the competent foreigner internment camp, etc. that he/she was a foreigner who entered the Republic of Korea in possession of a passport of another country and that he/she was a foreigner who acquired the country's nationality or lost the nationality of the Republic of Korea.

According to the reasoning of the judgment below, since the plaintiff possessed a Chinese passport, which is the principle of issuance of Chinese nationality to the above person who acquired Chinese nationality at the time of entry into the Republic of Korea, it is doubtful whether the plaintiff acquired Chinese nationality from the Chinese government on March 1, 1992 until July 13, 192, and the defendant also asserted that the plaintiff would have a Chinese nationality. Article 12 of the Nationality Act provides that the plaintiff's voluntary acquisition of foreign nationality shall lose the nationality of the Republic of Korea as a national of the Republic of Korea, and that the plaintiff would not have a legitimate right to receive the above domestic passport from the Chinese government's non-party 4, which was issued by the above non-party 9, for the above non-party 4, and that the plaintiff would not have a legitimate right to receive the passport from the Chinese government's non-party 1, who was a public official of the Republic of Korea, for the above non-party 4, who had been issued with the above domestic government's non-party 1's non-party 4, a legitimate co-party 5, who was issued.

In light of the records and the above legal principles, the above fact-finding and decision of the court below is just, and there is no error of law by misunderstanding the legal principles on the burden of proof of foreigners under Article 46 of the Immigration Control Act or failing to properly conduct the deliberation, such as the theory of lawsuit. There is no reason

2. Next, we examine the Plaintiff’s attorney’s grounds of appeal.

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the law and is objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be considered from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995).

The court below acknowledged the following facts: (a) the plaintiff's birth and emigration to China; (b) marriage with China; (c) North Korean citizenship and Chinese citizenship; and (d) the situation in which the plaintiff still holds a status as a citizen of the Republic of Korea; and (c) the plaintiff's compulsory departure order or protection order against the plaintiff is a disposition taken against a national of the Republic of Korea who is not subject to the disposition, and its defect is serious; (d) however, as long as the plaintiff had external appearance to be judged as holding a Chinese passport to be a person holding a Chinese nationality, its defect cannot be deemed objectively obvious; (e) the above compulsory departure order or protection order cannot be deemed as null and void as a matter of course; and (e) the above decision of the court below is just and there is no error in the misapprehension of legal principles as to the invalidation of administrative disposition, as the theory of lawsuit or in the misapprehension of legal principles as to the invalidation of administrative disposition.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-soo (Presiding Justice)