[1] In a case where an administrative agency rejected an application for naturalization on the ground that the applicant fails to satisfy part of the grounds under each subparagraph of Article 5 of the former Nationality Act, whether the “determination that the applicant failed to satisfy part of the grounds under each subparagraph” itself constitutes grounds for disposition (affirmative

[2] In a case where a foreign Gap applied for naturalization to the Minister of Justice, but the Minister of Justice rejected the application by failing to meet the requirements under the Nationality Act as a ground for non-permission, after review, and the Minister of Justice asserted that Gap had taken into account the history of being suspended from indictment as a result of violating the Automobile Management Act in the first instance trial proceedings, and that there was an additional history of staying in the court below proceedings, the case holding that the Minister of Justice may additionally assert the allegation on the ground that all the circumstances, such as the history of illegal stay, etc., presented in the court below, are only the basic facts or evaluation factors which serve as the ground for disposition, and thus, they can be asserted additionally

[3] In a case where an applicant for naturalization fails to meet the naturalization requirements under each subparagraph of Article 5 of the former Nationality Act, whether the Minister of Justice has to deny naturalization without room for exercising discretion on whether to permit naturalization (affirmative)

[1] As stated in each subparagraph of Article 5 of the former Nationality Act (amended by Act No. 15249, Dec. 19, 2017; hereinafter the same), the requirements for naturalization are specified specifically by item. Moreover, the Administrative Procedures Act that provides for the presentation of reasons for disposition, etc. as it is deemed difficult or unnecessary to undergo administrative procedures due to its nature is not applicable to naturalization (Article 3(2)9). Considering such special characteristics of naturalization, where an administrative agency rendered a disposition not to accept an application for naturalization on the ground that the applicant fails to meet some of the requirements for naturalization under each subparagraph of Article 5 of the former Nationality Act, which is the requirement for naturalization, the “determination that the applicant fails to satisfy some of the requirements under each subparagraph” itself constitutes

[2] In a case where a foreign person Gap filed an application for naturalization with the Minister of Justice, but the Minister of Justice rejected the application by failing to meet the requirements under the Nationality Act as a ground for non-permission, and the Minister of Justice asserted that Gap had taken into account the history of being suspended from indictment as a result of violating the Automobile Management Act in the first instance trial proceedings, and that there was an additional reason for having been an illegal stay in the oral proceedings of the court below, the case holding that the Minister of Justice determined that Gap failed to meet the requirements under Article 5 subparagraph 3 of the former Nationality Act (amended by Act No. 15249, Dec. 19, 2017; hereinafter the same shall apply), and issued a disposition by considering Gap's power, etc. at the time of the disposition, and stated in the written disposition "non-performance of good conduct" as a ground for non-permission, and thus, the result of determination of "non-performance of good conduct" should be deemed a ground for disposition, and thus, the Minister of Justice further asserted that all the circumstances presented by the Minister of Justice in the court below are not a ground for non-permission.

[3] In a case where an applicant for naturalization fails to meet the naturalization requirements under each subparagraph of Article 5 of the former Nationality Act (amended by Act No. 15249, Dec. 19, 2017), the Minister of Justice shall, without room for exercising discretion on granting permission for naturalization, reject the naturalization.

[1] Article 5 of the former Nationality Act (Amended by Act No. 15249, Dec. 19, 2017) / [2] Article 5 of the former Nationality Act (Amended by Act No. 15249, Dec. 19, 2017) / [3] Article 5 of the former Nationality Act (Amended by Act No. 15249, Dec. 19, 2017)

Plaintiff (English name omitted) (Attorney Hun-young, Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul High Court Decision 2015Nu49124 decided December 18, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the addition and modification of grounds for disposition

A. Article 5 of the former Nationality Act (amended by Act No. 15249, Dec. 19, 2017; hereinafter the same) provides that “where there has been a domicile in the Republic of Korea for at least five consecutive years” as the requirements for naturalization (Article 1); “I shall have an adult under the Civil Act of the Republic of Korea (Article 2); “I shall be determined to have good conduct” (Article 3); “I shall have a ability to maintain their livelihood by reliance on a person’s asset (property) or function or a family member who lives together with him/her (Article 4); and “I shall have basic knowledge (Article 5) as a national of the Republic of Korea, such as Korean language ability and understanding of Korean custom” (Article 5).

Naturalization requirements are specifically prescribed by item as above. Moreover, the Administrative Procedures Act that provides for the presentation of reasons for disposition, etc. is not applicable as it is deemed difficult or unnecessary to undergo administrative procedures due to its nature (Article 3(2)9). Considering the special nature of naturalization, where an administrative agency rejected an application for naturalization on the ground that the applicant fails to meet some of the requirements for naturalization under each subparagraph of Article 5 of the former Nationality Act, it is reasonable to deem that the “determination that the applicant fails to satisfy some of the requirements under each subparagraph” itself constitutes grounds for disposition.

B. Comprehensively taking account of the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following circumstances are revealed.

(1) On June 18, 2013, the Plaintiff filed an application for naturalization with the Defendant, following a review, and the Defendant rendered a disposition not to accept the application against the Plaintiff on September 26, 2014 (hereinafter “instant disposition”). The written disposition states as follows: “The Defendant rendered a decision not to accept the application due to lack of requirements under the Nationality Act (Articles 5 through 8)” and the grounds for refusal.

(2) As to the grounds for determining the Plaintiff at the time of the instant disposition, the Defendant asserted that “the Plaintiff was found to have illegally used the car number plate and thus having received the disposition of suspension of indictment on September 29, 2009” and “the result of a personal assistance in violation of the Automobile Management Act.” In addition, in the oral proceedings of the lower court, the Defendant asserted that the Plaintiff may be deemed to fall under “unauthorizedness in good conduct” of the Plaintiff, considering these additional circumstances, since “the Plaintiff had been illegally staying in the Republic of Korea from July 3, 2001 to September 7, 2003.”

(3) The lower court determined as follows: (a) comprehensively taking account of the Plaintiff’s illegally staying in the Republic of Korea from July 3, 2001 to September 7, 2003, and the fact that the Plaintiff was found to have been exempted from sanctions in the process of legalizing illegal aliens, and the fact that the Plaintiff was released from indictment on September 29, 2009 due to the violation of the Automobile Management Act as to the violation of the Motor Vehicle Management Act; and (b) taking into account other favorable circumstances in favor of the Plaintiff, the Plaintiff constitutes “unauthorized conduct.”

C. Examining these circumstances in light of the legal principles as seen earlier, the Defendant rendered the instant disposition by deeming that the Plaintiff failed to meet the requirements of “effortness” under Article 5 subparag. 3 of the Nationality Act at the time of the instant disposition, taking into account the Plaintiff’s aforementioned records, and stated in the written disposition as the grounds for the disposition, the result of determining “effortness” should be deemed the grounds for the instant disposition. Thus, the circumstances, such as the period of illegal stay, etc. additionally presented by the Defendant at the lower court, are not only the grounds for the instant disposition, but also the underlying facts or assessment factors that serve as the grounds for the instant disposition. Therefore, the Defendant may assert such circumstances additionally.

D. Therefore, the court below did not err by misapprehending the legal principles on addition and modification of the grounds for disposition, contrary to what is alleged in the grounds of appeal, in determining that the plaintiff constitutes "a failure to act" in consideration of the records of illegal stay additionally asserted by the defendant in the proceedings

2. As to the assertion of misapprehension of the legal principle as to the requirements for good conduct

The lower court, on the grounds as seen earlier, determined that the Plaintiff constituted “unfitness and good conduct.”

Examining the reasoning of the judgment below in light of the records, the above conclusion of the court below is acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the interpretation and application of naturalization requirements, such as good conduct, or by failing to exhaust all necessary

3. As to the assertion of misapprehension of the legal principle as to deviation from and abuse of effective discretion

If an applicant for naturalization fails to meet the naturalization requirements stipulated in each subparagraph of Article 5 of the Nationality Act, the defendant must take a disposition of denying naturalization without room for exercising discretion on whether to permit naturalization. Thus, it is inappropriate for the court below to further determine whether the plaintiff's deviation or abuse of discretionary power is inappropriate even if the applicant fails to meet the naturalization requirements. However, since this is not only a family judgment but also does not affect the judgment, it is not a legitimate ground for appeal (see, e.g., Supreme Court Decision 90Da5283, Dec. 11, 1990).

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)