The case holding that the departure order of a foreigner staying in Korea on the ground of infection with human immunodeficiency virus(HIV) is unlawful as it deviates from and abused discretion.

The case holding that while it is not clear whether the order of a foreigner staying in the Republic of Korea to leave the Republic of Korea on the ground that he/she is infected with human immunodeficiencydeficiency virus (HIV), which causes AIDS, is likely to achieve the public interest of the prevention of contagious diseases that he/she intends to protect by the disposition, there is an error of deviation from and abuse of discretion, since it seriously infringes on the foreigner's right to residence and transfer, the right to pursue happiness including family-combined right, etc

Article 11(1)1, Article 46(1)2, and Article 68(1)1 of the Immigration Control Act, Article 27 of the Administrative Litigation Act

Plaintiff (Attorney Seo-chul et al., Counsel for the plaintiff-appellant)

Head of Seoul Immigration Office

February 27, 2008

1. The Defendant’s disposition of departure order against the Plaintiff on May 4, 2007 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the instant disposition

A. The Plaintiff was a Chinese Chinese national with Chinese nationality, and received a visa (F-1-4) who visited and living in Korea at the invitation of Nonparty 1 with Korean nationality, and entered Korea on March 22, 2007. On April 4, 2007, the Plaintiff received a visa for visiting employment (H-2-A) from the Seoul Immigration Control Office until March 21, 2009.

B. On May 3, 2007, the Plaintiff participated in the employment training for foreign nationality Koreans conducted by the Korea Labor Foundation, and was determined as “human immunodeficiency virus virus (HIV)” as a result of the health examination, and the competent public health clinic notified the Seoul Immigration Office of the fact that the Plaintiff is a person responding to HIV training.

C. Accordingly, in accordance with Article 51(3) of the Immigration Control Act (hereinafter “the Act”), the Defendant issued an order to voluntarily leave the Plaintiff from May 3, 2007 to May 7, 2007, to voluntarily leave the Republic of Korea by May 4, 2007 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 through 6, Eul evidence Nos. 9 through 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Defect in the procedure of the instant disposition

In rendering administrative dispositions, matters such as facts that are the grounds for the disposition pursuant to the Administrative Procedures Act, contents and legal grounds of the disposition, the purport that the submission of opinions is possible, and the processing method when the opinion is not submitted shall be notified in advance to the other party, and the opportunity to present opinions shall be given. However, in rendering the disposition to the plaintiff in this case, the defendant did not give the above prior notice, and did not give the opportunity to present opinions, and the reasons for the disposition was not specified in the written order for order for departure. Accordingly, the disposition in this case must be revoked as it has gross errors in the procedure.

(2) unconstitutionality of applicable law

In general, although matters concerning the entry and residence of foreigners belong to the sovereignty of an individual country, there is a limit to the restriction of fundamental rights under the Constitution and the international human rights rules. Article 11(1)1 of the Act, which is the basis of the disposition of this case, provides that all contagious disease patients shall be prohibited from entering the Republic of Korea without distinction according to the difference in the route of infection, the speed of propagation, etc., and furthermore, Article 46(1)2 and Article 68(1)1 of the Act uses the same as it is for the reasons for compulsory eviction and departure order, which is obviously unconstitutional due to the following reasons.

(A) Violation of the principle of excessive prohibition

In order to prevent contagious diseases and to protect the right to health of infected persons, it is particularly true in light of the fact that all foreigners infected with contagious diseases are forced to leave the Republic of Korea, despite the fact that there are various methods of restricting the types of occupation in which the relevant patient can work, or blocking the route of infection, are contrary to the principle of minimum damage, and in particular, AIDS (AIDS) is not subject to quarantine under the Prevention of Contagious Diseases Act, and is not subject to quarantine under the Prevention of Contagious Diseases Act, and is a class 3 contagious disease, the genetic ability of which is relatively weak.

(b) Violation of the principle of equality.

Taking a permanent isolation measure against foreigners who have the right to reside in Korea more strong than the compulsory isolation measure, and the prohibition of re-entry is an unfair discriminatory act based on the medical history against foreigners. In other words, in the case of nationals, there is no reasonable reason to allow them to deprive the relevant foreigners of their opportunity to receive medical treatment and forced departure from a disease that is not subject to isolation, and in the case of law, the grounds for non-entry prohibition are invoked as they are in the grounds for non-entry prohibition. Thus, this is contrary to the basic principle of equality that “the same shall apply to all foreigners who already enter Korea and intend to first enter Korea and foreigners who already intend to enter Korea,” and that “other things different” should be treated as the same.

(C) Principle of clarity

The Act provides for the deportation of “patients with contagious diseases” or “persons deemed likely to cause danger and harm to public health,” but the definition of “patients with contagious diseases” or “persons deemed likely to cause danger and harm to public health” are not separately provided for in the Act. The provision of “patients with contagious diseases” or “persons deemed likely to cause danger and harm to public health,” itself, is in contravention of the principle of clarity, because it

(3) A deviation or abuse of discretionary authority

The instant disposition is deemed a discretionary act. The public interest that can be achieved due to the instant departure disposition is either insignificant or nonexistent, while the personal disadvantage that the Plaintiff may incur is harsh, and thus, the instant disposition is unlawful as it is in deviation from and abuse of discretion.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

(1) HIV/AIDS for a disease;

Acquired immunodeficiency(Acquired 1m Deficicy Syrom, A.S) refers to a series of symptoms that occur in pulmonary tuberculosis, etc., by re-acting germs, viruses, etc., which did not cause diseases within a healthy human body due to the decline of immunodeficiency function, or by intrusion and proliferation from outside, and spreading from new germs. HIV(HIV), which caused A.S, is a virus, but has been infected with a virus, but the term "HIV infection" is widely used by cover those who did not show the symptoms of A.S.

The main route of HIV infection is direct sexual contact, blood transfusion, pregnancy, childbirth, water supply, infection, etc., and it is not infected by ordinary contact, meals, public bath and variable use, insects, etc., such as water, air, drinking water, potteries, etc., which are not infected by HIV infections. Meanwhile, HIV was a virus with high early detection rate of death, but its main route was relatively effective medicine and administration methods were developed through the development, distribution, etc. of Port-HIV joint law since the mid-1900s, so the life of patients infected by HIV was extended, and its power was also lowered.

In Korea, I classify AIDS into two contagious diseases, and classify them into three contagious diseases as they have been amended by Act No. 6162 on January 12, 2000. Article 29 of the Prevention of Contagious Diseases Act and Article 16 of the Enforcement Rule stipulate some of the contagious disease diseases of Type 1 and the contagious disease diseases of Type 3 and Type 4, which are highly likely to spread, as they are subject to isolation. However, among the contagious diseases of Type 3, they are only subject to isolation of patients suffering from scarlet fever and scarcalocaloccaloccaloccalociosis, but they are not subject to isolation.

(2) Policies of the world on the entry and stay of persons HIV infections

At present, countries that prohibit the short-term stay of HIV infections in the world are 10 countries, such as the United States, China, C, Russia federal, Saudi Arabia, and most OECD countries (Canadian, Australia, Japan, the United Kingdom, Ireland, Germany, and Finland, etc.), with the exception of the Republic of Korea and the United States, allow them to sojourn even in cases where HIV infections are discovered after entry. Meanwhile, Japan does not restrict entry and departure of HIV infecteds, but allows them to receive medical expenses from Japan's national health insurance in cases of registered HIV infections, and Finland also gives the same treatment to foreigners if HIV infections are discovered after entry, and in cases of Australia or Canada, the spouse of the citizen and children of the national in cases of children, etc., special consideration is given to family life, such as exceptional treatment.

(3) Domestic conditions

The Republic of Korea provides that patients with infectious diseases shall be subject to general prohibition of entry into the Republic of Korea. In particular, industrial trainees, foreign workers with employment permit, and the results of the HIV/AS inspection before entering the Republic of Korea in special cases provided for in Article 10(3) of the Enforcement Decree of the Prevention of Acquireddeficiencydeficiency Diseases Act. However, in general, there is no way to confirm whether foreigners are infected with HIV or other infectious diseases before entering the Republic of Korea, and the Ministry of Justice takes measures to prohibit entry after departure of foreigners staying in the Republic of Korea except in exceptional cases where foreigners staying in the Republic of Korea after entering the Republic of Korea, and takes measures to prohibit entry after obtaining a deportation order by securing a new disease in the case of foreigners staying in the Republic of Korea.

On the other hand, the cumulative number of foreign HIV infections confirmed in the Republic of Korea from 1985 to 2007 is 647, and 39 foreign HIV infections in the Republic of Korea legally staying in the Republic of Korea with permission on September 2007. Among them, 24 Korean spouse, 8 Korean refugee procedure, and 5 Korean resident who obtained permanent residence or who was recognized as a refugee is in the Republic of Korea, and 5 Korean resident who was in the Republic of Korea. Meanwhile, unlike the thorough management of HIV infections as above, there are no special control for departure and entry of other infectious diseases, and there are no statistics.

(4) The plaintiff's situation

(A) Although the Plaintiff’s biological mother Nonparty 1 was initially holding Chinese nationality, on February 10, 1997, he acquired Korean nationality by marriage with Nonparty 2, a Korean citizen, and currently had one woman (11 years old) between Nonparty 2 and Nonparty 2.

(B) Nonparty 1 divorcedd with Nonparty 3 of the Plaintiff’s biological father in around 1992, which was the year when the Plaintiff was 17 years of age. At the time, Nonparty 1, who was the two children, was the mother of the Plaintiff, and Nonparty 3, who made Nonparty 4, respectively, decided to care for the Plaintiff, and the contact with the Plaintiff and Nonparty 1 was cut down.

(C) The Plaintiff graduated from the University located in China with the mother and the father of his birth, and graduated from the University located in North Korean. On June 12, 2002, the Plaintiff entered the Republic of Korea with the comprehensive visa (C-3 and 90 days of sojourn period) on a short-term basis, and stayed for two years and six months. On January 4, 2005, the Plaintiff left Korea after being subject to the postponement of entry regulations in accordance with the program of voluntary return of foreigners residing in Korea on March 22, 2007, but the Plaintiff was on the invitation of the mother on March 22, 2007, and was on the part of the non-resident, but was found to have been infected with HIV virus virus virus virus infection during the employment training of foreign nationality Koreans.

(D) Accordingly, the Plaintiff was taken protective measures for deportation, submitted a letter of intent to voluntarily leave the Republic of Korea by his mother and father, and was released after the instant disposition was issued.

(E) The Central University Hospital diagnosed that, while the Plaintiff’s present condition is divided into four hundred and forty-two degrees, the CD4 value, which is an immunocell, is tracking and observing without pharmacologic treatment, and that, in light of the general CD4 reduction rate, drug treatment should be deemed necessary when approximately four years elapse.

(F) The Plaintiff is currently living together with the mother, father, and mother, and is applying for special naturalization on May 14, 2007. Meanwhile, the Plaintiff’s life Nonparty 1 and father Nonparty 2 wish to have the Plaintiff live together with the Plaintiff and receive appropriate treatment.

[Ground of recognition] Unsatisfy, Gap evidence 2 through Gap evidence 15, Eul evidence 4, Eul evidence 13, the result of fact inquiry to the Director of the Korea Centers for Disease Control and Prevention, and the Minister of Justice, the purport of the whole pleadings

(d) Markets:

(1) Whether the procedure is unlawful

However, according to Article 3 (2) 9 of the Administrative Procedures Act and Article 2 (2) 2 of the Enforcement Decree of the Administrative Procedures Act, the Administrative Procedures Act does not apply to matters concerning foreigner's entry into and departure from the Republic of Korea, recognition of refugee status, naturalization, and recovery of nationality. The disposition of this case is related to foreigner's entry into and departure from the Republic of Korea. Thus, even if the disposition of this case does not comply with the procedure prescribed by the above Act, it

(2) Whether the underlying law is unconstitutional or not

(A) Article 13 of the Universal Declaration of Human Rights enacted in 1949 declares that all persons, including foreigners, have the right to freedom of residence and movement in their respective territories and have the right to depart from any country including them and have the right to depart, but on the other hand, it is natural in light of the inherent nature of the sovereignty that the State has the right to depart from a foreigner who is not desirable, and thus, it cannot be deemed that a foreigner has the freedom of residence and movement like a national.

(B) In addition, even if fundamental rights guaranteed by the Constitution are guaranteed by Article 37(2) of the Constitution, “where necessary for national security, maintenance of order, or public welfare, the restriction may be made by law.” In light of the fact that the State restricts the entry of “patients with infectious diseases, addicts to narcotics, or foreigners deemed likely to cause harm to public health,” and allowing departure measures to be taken, it is determined that the departure measures are necessarily necessary for public welfare, and Articles 11(1)1, 46(1), and 68(1)1 of the Act provide that the disposition authorities may have discretion to take into account the special circumstances of individual foreigners, even if all the reasons alleged by the Plaintiff are considered, it is difficult to deem that the above legal provisions violate the principle of excessive prohibition, or are contrary to the principle of equality.

(C) Meanwhile, the Plaintiff asserts that the expression “contagious disease patients” or “a person deemed likely to cause danger and harm to public health” can be excessively comprehensive and broad interpretation, and thus, it violates the principle of clarity. However, even if the said expression is somewhat comprehensive, it may not be deemed that the said provision lacks clarity in light of the following: (a) the legislative purpose of the said Act and the characteristics of immigration control over foreigners are considered to have sufficiently predicted and interpreted the specific meaning based on the ordinary legal sentiment and reasonable common sense; and (b) the said provision may be interpreted limited to the scope thereof through the relevant statutes, etc.

(D) Therefore, the Plaintiff’s assertion on this part is without merit.

(3) Determination on the assertion of deviation or abuse of discretion

(A) Inasmuch as the order of departure falls under the discretionary disposition as seen above, it is examined whether the instant disposition is excessively harsh to the Plaintiff’s individual compared to the public interest protected by the order of departure, and is beyond the discretionary scope. In other words, the following circumstances revealed in the above facts: ① HIV virus virus, which is the cause of AIDS, is infected with a specific route, and there is little possibility of being infected by ordinary contacts; ② the Plaintiff has lawfully entered Korea with the invitation of the mother who is a Korean national, and there is no other family member who can look at the Plaintiff in China. ③ The Plaintiff’s family member who is a Korean national wishes to live together with the Plaintiff. ④ From the perspective of preventing the spread of HIV infection, it is not verified whether the Plaintiff’s family member still wishes to have been infected with the Plaintiff, and ④ The Plaintiff’s treatment of the instant case, including the removal of infection, is more likely to be achieved, and thus, the Plaintiff’s voluntary treatment and removal of infection, including the removal of infectious disease, can be made clear in light of social norms.

(B) Ultimately, the Plaintiff’s assertion that the instant disposition was unlawful as it deviates from or abused discretion is reasonable.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

[Attachment] Relevant Acts and subordinate statutes: (Omission)

Judges Jeon Sung-soo (Presiding Judge)