Plaintiff (English name omitted) (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

The Secretary General of the Korean Ambassador General and Consul General

July 18, 2014

Seoul Administrative Court Decision 2013Guhap21205 decided December 12, 2013

1. Revocation of the first instance judgment.

2. The Defendant’s disposition rejecting the issuance of a visa against the Plaintiff on July 16, 2013 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On April 5, 2010, the Plaintiff was a national of the People’s Republic of China (hereinafter “China”), and completed a marriage report with Nonparty 1 (Counter-party: Nonparty) who is a national of the Republic of Korea.

B. On May 14, 2010, the Plaintiff filed an application with the Defendant for the issuance of a visa for the status of stay for marriage immigrants (F-6), but rejected on August 9, 2010 on the ground of “abstinence of marriage,” and thereafter, received a rejection disposition on the grounds of “abstinence of marriage, etc.” on August 18, 2011 and September 3, 2012, respectively.

C. On May 27, 2013, the Plaintiff filed an application with the Defendant for the issuance of a visa for the status of stay for marriage immigration (F-6). However, on July 16, 2013, the Defendant rejected the Plaintiff’s application on the ground of “non-party 1’s lack of family support capacity” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 3, 5 evidence, Eul evidence 2 (including branch numbers, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's main defense

① Since a foreigner has no legal or legal right to request the issuance of a visa to a certain country, the instant disposition is not subject to appeal litigation.

② A foreigner is not free to enter the Republic of Korea, and visa-related provisions do not grant a foreigner the right to obtain a visa or any legal interest, and only a benefit arising from the issuance of a visa is a reflective interest, and there is no standing to sue to seek revocation of the disposition of this case against the Plaintiff

Therefore, the instant lawsuit seeking revocation of the instant disposition is unlawful.

B. Whether the instant disposition is eligible to file an appeal

1) If an administrative agency’s refusal of an application against a certain person’s affirmative action constitutes an administrative disposition that is subject to an appeal litigation, the act of refusal shall be an exercise of public authority or an equivalent administrative action, and the act of refusal shall cause changes in the applicant’s legal relationship, and the person must have the right to file an appeal under the law or sound reasoning to demand that the applicant act. Furthermore, the existence of right to file an appeal, which serves as a prerequisite for recognizing a disposition of refusal, shall be determined abstractly by examining, in a specific case, the applicant’s right to file an appeal without considering who is the applicant’s right to file an appeal, and the applicant’s right to file an appeal shall not mean the right to obtain the satisfactory result of accepting an application beyond a simple right to respond to the application. Thus, if a certain person makes an application and it appears that an individual’s right to file an appeal against an administrative action is recognized, the refusal shall be deemed a disposition that becomes the subject of an appeal litigation (see Supreme Court Decision 200Du3608, Feb. 36, 2009).

2) Comprehensively taking account of Articles 7(1), 8(3), and 10(1) of the Immigration Control Act, a foreigner who intends to enter the Republic of Korea shall obtain the status of stay prescribed by Presidential Decree, obtain valid passports and visas issued by the Minister of Justice, and the standards and procedures for issuing visas shall be prescribed by Ordinance of the Ministry of Justice. According to Article 7(1) and (2) of the Enforcement Decree of the same Act, a foreigner who intends to obtain a visa shall submit an application for visa issuance to the head of an overseas diplomatic mission along with documents prescribed by Ordinance of the Ministry of Justice, and the head of an overseas diplomatic mission shall issue a visa stating necessary matters, such

Therefore, since the issuance of a visa by a foreigner becomes a requirement for entry into the Republic of Korea, the issuance of visa by the head of an overseas diplomatic mission constitutes the exercise of public authority and the refusal of visa constitutes a change in the applicant's legal relationship, which prevents the visa applicant from entering the Republic of Korea, and the foreigner has the right to apply for visa issuance in accordance with the above statutory provisions.

Therefore, the subject of the instant disposition is recognized as being subject to the rejection disposition that is subject to appeal litigation.

C. Whether the plaintiff has standing to sue seeking revocation of the instant disposition

The plaintiff is deemed to have individual, direct, and specific interests protected by the laws and regulations related to the issuance of visas as the other party to the disposition of this case. Thus, standing to sue to seek revocation of the disposition of this case is recognized.

D. Sub-committee

Therefore, the defendant's main defense is without merit.

3. Judgment on the merits: Whether the disposition of this case is legitimate

A. The plaintiff's assertion

The non-party 1, who is the spouse of the plaintiff, has a regular farming income, and obtains income from the field of construction, and also has a residential space to live together with the plaintiff, there is no problem in the ability to support the family. However, since the disposition of this case was conducted on different premises, as well as the plaintiff's private interest is considerably high compared to the public interest to be formed, there is an error of deviation from and abuse of discretionary power.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

1) Relevant legal principles

According to Article 10 of the Immigration Control Act, a foreigner who intends to enter the Republic of Korea shall be granted the status of stay prescribed by Presidential Decree, and Article 12 [Attachment Table 1] 28-4 (a) of the Enforcement Decree of the same Act provides that a foreigner who is a national spouse shall obtain the status of stay for marriage immigration (F-6). In addition, the head of an overseas diplomatic or consular mission may issue a visa for marriage immigration (F-6) upon delegation by the Minister of Justice pursuant to Article 8 (2) of the Immigration Control Act, Article 11 (2) of the Enforcement Decree of the same Act, and Article 9 (1) 9 of the Enforcement Rule of the same Act. In this case, the head of an overseas diplomatic or consular mission shall examine and confirm whether a foreigner who has applied for a visa pursuant to Article 9-2 of the Enforcement Rule of the Immigration Control Act falls under the status of stay, and the foreigner who has applied for a visa to issue the visa for marriage marriage and the invitation thereof may obtain the status of stay for normal marriage life in accordance with Article 9-5 (1) of the court.

Meanwhile, Article 36(1) of the Constitution provides, “Marriage and family life shall be established and maintained on the basis of an individual’s dignity and gender equality, and the State shall guarantee it.” Article 36(1) of the Constitution guarantees as a fundamental right the freedom to decide and form marriage and family life by itself, and guarantees a system for marriage and family (see Constitutional Court Order 2001HunBa82, Aug. 29, 2002). Here, “family” includes the right to form a family, in principle, includes the right to live together by one of the married couple who is a national of the Republic of Korea and another person who is a foreigner. In addition, where a family member is legally residing in a specific country, the right to form a family shall be protected in a special form among the freedom of marriage.

Considering the above sojourn status-related provisions of the Immigration Control Act (F-6), freedom of marriage, and family-combined rights under the Constitution are protected by the Constitution, even if the issuance of a visa is an express act of a sovereign state that decides whether to allow entry into the Republic of Korea to a foreigner, the head of the diplomatic mission abroad in receipt of an application for visa issuance for marriage stay should issue a visa unless there are special circumstances to the contrary, unless the authenticity of marriage and the possibility of normal marriage life is recognized.

2) Based on the legal principles of the above 1, it is reasonable to view that Nonparty 1 has the ability to support the family that can lead a normal marriage with the Plaintiff in full view of the following circumstances that are acknowledged to return to the instant case on the basis of the legal principles of the above 1) and return to the instant case, Gap, 4, 11, 12, and 13, Eul evidence No. 2, and Eul evidence No. 2, and the testimony of non-party 1 by the witness witness of the trial court, and thus, Nonparty 1 has the ability to support the family that can lead a normal marriage with the Plaintiff.

① Although it is difficult for the Plaintiff’s spouse Nonparty 1 to leave an elementary school as a physically healthy man of 1967 and read the Plaintiff’s text, the investigator of the Cheongju Immigration Office who visited Nonparty 1, on July 10, 2013, reported in the report on the investigation of the current situation conducted on July 10, 2013, that “I do not find any big problem in the history of the interview and judgment during the course of the interview.”

② Nonparty 1, around 1987, was employed in one company located in the Sung-gu branch of Sungnam-si in 1987 and retired from office for a period of nine years. On February 10, 1995, Nonparty 2, whose father was living, transferred to the Chungcheongbuk-gun ( Address omitted) where Nonparty 2, his father around February 10, 1995, and then obtained the income of KRW 10,000,000 per annum as well as the income of Nonparty 3, who was the third square.

③ In addition, Nonparty 1 gains an annual average of KRW 15,00,000 by making it difficult to see that Nonparty 1 either 20 to 25 days per month on the clify season (other than January and February) or 15,00 per annum on the clify in another farm or by piling up bricks at the construction site.

④ Nonparty 1 purchased a rental apartment (hereinafter “instant apartment”) under his/her name in the price of KRW 5,00,000 on January 11, 2012, and resides in the Plaintiff and the instant apartment. At the time of purchase, Nonparty 1 received a housing mortgage loan of KRW 3,00,000 at the time of purchase, but at the same time, Nonparty 1 did not have a loan obligation at present after full repayment on January 6, 2014.

⑤ Nonparty 1’s income was managed by the “second sentence that served as a military noncommissioned officer.” On July 9, 2010, Nonparty 1 and the Plaintiff, immediately after the marriage, deposited KRW 53,000,000 in the account of domestic credit cooperatives under the name of Nonparty 1. However, due to the instant apartment purchase and the payment of fees to a company that introduced the Plaintiff, Nonparty 1’s deposit account in the name of Nonparty 3,40,000 at the time of the instant disposition was in existence.

6) The Plaintiff did not issue a visa for stay status of marriage immigration (F-6) despite the repeated application, from April 5, 2010, married to Nonparty 1, obtained a short-term general (C-31) or pure tourism (C-32) visa and repeated departure and re-entry several times while staying in the Republic of Korea for a short time. Nonparty 1 was fully liable for the round-up flight expenses incurred by Nonparty 1 at one’s own money.

7) Although Nonparty 1 is not a worker who is not a worker who is subordinate to a specific employer for a long time, he/she has earned a certain amount of income exceeding an average of 2,00,000 won per month in full among the above-mentioned ① through 6, and in light of the characteristics of the farming day and the construction site labor, it seems that the above certain income can be earned up to the maximum working age, barring any special circumstances.

8. Nonparty 1 is declared bankrupt or has not paid a default and has no criminal record.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim of this case.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)