2020 Gohap3540 Revocation of revocation of naturalization

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June 15, 2021

July 20, 2021

1. The defendant's rejection of naturalization against the plaintiff on June 5, 2020 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 disposition;

A. A. Around March 18, 2003, the Plaintiff entered the Republic of Korea with his mother who is a national of the Republic of Korea as his/her sojourn status (F-1). The Plaintiff was changed to his/her sojourn status on September 7, 2017 as his/her resident status (F-2) and has maintained the above sojourn status until now, and is residing in the Republic of Korea.

B. On August 21, 2018, the Plaintiff filed an application for special naturalization pursuant to Article 7(1) of the Nationality Act with the Defendant on August 21, 2018, but the Defendant rejected the Plaintiff’s naturalization on the grounds of no permission on June 5, 2020 on the grounds of no permission, and on the grounds of Article 5 subparag. 3 of the Nationality Act (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

1) Plaintiff

On February 13, 1996, the Plaintiff was born between the mother who is a national of the Republic of Korea and the father of Japan in Japan. However, upon the divorce of the parent, the Plaintiff entered the Republic of Korea on March 2003, and resided in the Republic of Korea until now, and the human and material relationship with Japan was severed.

Although the Plaintiff received a summary order of KRW 300,000 from ○○ District Court’s ○○ Branch on October 23, 2017 as a violation of the Road Traffic Act (unlicensed driving) on the part of the Plaintiff, the Plaintiff, even after becoming an adult, went off in order to punish living expenses even after becoming delivery. As such, there are circumstances that may be considered in the motive of the crime, and the degree of the crime is relatively minor. Considering these circumstances, the Plaintiff ought to be deemed to have satisfied the requirement that “the act of good conduct is determined” under Article 5 subparag. 3 of the Nationality Act, and thus, the instant disposition otherwise determined should be revoked.

2) Defendant

On October 23, 2017, the Plaintiff received a summary order of KRW 300,000 as a violation of the Road Traffic Act (unlicensed driving) from ○ District Court ○○○○○○ Branch on October 23, 2017, and was investigated by the police as an offense of insult even around July 16, 2020. In addition, when the Plaintiff entered the Republic of Korea as a sojourn status of visiting Dong (F-1) around March 18, 2013, the Plaintiff was subject to an illegal stay for at least 11 years until August 2017, which was the prescribed sojourn period, and even though the passport number was changed on January 10, 2018, the Plaintiff did not report it within the statutory period and was subject to a disposition of an administrative fine of KRW 200,000 as an offense of violation of Article 35 of the Immigration Control Act. In light of these circumstances, it is reasonable to deem that the Plaintiff failed to meet the requirements of “goods” under Article 5 subparag. 3 of the Nationality Act.

B. Determination

1) Relevant regulations and legal principles

A) Article 4(1) of the Nationality Act provides that "A foreigner may acquire Korean nationality by obtaining permission for naturalization from the Minister of Justice." Article 4(2) provides that "The Minister of Justice shall, upon receipt of an application for permission for naturalization, determine whether a foreigner satisfies the requirements for naturalization under Articles 5 through 7 and then allow naturalization only to a person who satisfies the requirements." Article 5(3) of the Nationality Act provides that "A foreigner shall meet the requirements for special naturalization prescribed by Ordinance of the Ministry of Justice, such as complying with Acts and subordinate statutes." Article 7(1) of the Nationality Act provides that "A foreigner who falls under any of the following subparagraphs and has a domicile in the Republic of Korea may obtain permission for naturalization without meeting the requirements under Article 5 subparagraph 1, 1-2, 2 or 4 of the Nationality Act." In conclusion, even in case of special naturalization, a person who satisfies the requirements under Article 5(3) of the Nationality Act.

Article 5-2 of the Enforcement Rule of the Nationality Act provides that Article 5-3 of the Nationality Act shall be specified and conclusive.

In addition, Article 5-2 subparagraph 2 of the Enforcement Rule of the Act provides that where a foreigner who intends to obtain permission of naturalization does not fall under any of the following cases, the Minister of Justice recognizes that the foreigner's act is good in consideration of the circumstances and frequency of violation of the Act and subordinate statutes, degree of violation of the public interest, degree of contribution to the Korean society, humanitarian circumstances and national interests, etc. In addition, Article 5-2 subparagraph 2 of the Enforcement Rule of the Act provides that where the foreigner's act falls under any item of subparagraph 1, "where the Minister of Justice recognizes that the foreigner's act is good in consideration of the circumstances falling under any item of subparagraph 1, degree of violation of public interest, degree of contribution to the Korean society, humanitarian circumstances and national interests, etc."

B) Nationality is determined as a citizen, and a person who acquires it becomes the subject of the State’s sovereign power at the same time. Thus, permission for naturalization constitutes an act of comprehensively establishing the legal status of a citizen by granting the nationality of the Republic of Korea to a foreigner. In addition, no provision exists to deem that a foreigner granted the right to acquire the nationality of the Republic of Korea to anywhere in the relevant statutes, such as the Nationality Act. In light of the form and text of the provisions on the grounds for permission for naturalization, such as Article 4(1) of the Nationality Act, and the content and characteristics of permission for naturalization, the Minister of Justice has discretion as to whether to allow naturalization even if an applicant for naturalization satisfies all the requirements for naturalization under the Nationality Act (see, e.g., Supreme Court Decision 2010Du6496, Oct. 28, 2010). However, the Minister of Justice does not permit arbitrary discretion. Accordingly, in exercising discretionary power, the Minister of Justice should exercise it reasonably in consideration of the legislative purpose of the Nationality Act, the content and legislative purport of individual provisions prescribing the requirements for acquisition of nationality.

2) Meeting the requirements for good conduct under Article 5 subparagraph 3 of the Nationality Act

Examining the following circumstances revealed based on each of the aforementioned evidence in light of the relevant provisions and legal principles, the Plaintiff is deemed to have satisfied the requirements for determining good conduct under Article 5 subparag. 3 of the Nationality Act and Article 5-2 subparag. 2 of the Enforcement Rule of the Nationality Act, and the circumstance alleged by the Defendant alone cannot be viewed differently.

A) On February 13, 1996, the Plaintiff was born between the mother who is a national of the Republic of Korea and Japan and the father of the Republic of Korea. After that, the Plaintiff’s parents were divorced, and the Plaintiff entered the Republic of Korea on March 18, 2003 with his mother, who was 7 years old and under the name of “E after entering the Republic of Korea”, and had a close relationship with the Republic of Korea with the Republic of Korea. On the other hand, the Plaintiff did not have any living relationship with Japan.

B) Even after the lapse of March 18, 2006, which is the period of sojourn based on the Plaintiff’s visiting and accompanying status (F-1), C did not take any measures to resolve the Plaintiff’s identification system, such as filing an application for extension of the period of sojourn for the Plaintiff who is a minor child. C was not using almost neys in raising the Plaintiff due to economic problems, and there was no long contact.

Although the Plaintiff formally intended to stay in the Republic of Korea from March 19, 2006 to August 26, 2017, the Plaintiff’s illegal stay status was a result of the Plaintiff’s illegal stay in the Republic of Korea. However, it is difficult to see that the Plaintiff’s legal representative, who is a national of the Republic of Korea, was the Plaintiff’s fault, and only 11 years old at the time of the Plaintiff’s illegal stay status, and it is difficult to look at the Plaintiff’s liability. Therefore, the above reason does not constitute a ground to deem that the Plaintiff’s physical stay is difficult.

C) After that, the Plaintiff did not receive regular education in the Republic of Korea due to the above problems, and developed into the care of E (1981) E, E, a E, a E, a E, a Korean husband. The Plaintiff, immediately after becoming an adult, was unable to seek a proper work due to his/her status problems, and became economically difficult and economically difficult, and was hospitalized in a traffic accident while he/she was carrying out delivery work without a license in order to compensate for living expenses from the F’s husband without a license. The husband of F, who was hospitalized, agreed only with the other party’s husband, and the Plaintiff did not receive criminal punishment at the time.

However, around August 28, 2017, the Plaintiff was detained at the Seoul Immigration Office as an offender in violation of the Immigration Control Act on the wind, which revealed that he/she is an illegal alien by undergoing an autopsy from the police around August 28, 2017. The Plaintiff’s child of the Republic of Korea was considered in the situation where the Plaintiff had resided in the Republic of Korea for a long time as his/her child of the Republic of Korea, and was released from protection and allowed his/her stay. During the investigation process, the Plaintiff revealed that the Plaintiff was driving without a license as mentioned above, and accordingly, the Plaintiff was subject to a summary order of KRW 300,000 as a fine for a violation of the Road Traffic Act (unlicensed Driving) from ○ District Court ○○○○○○○○ on October 23, 2017.

As such, there are circumstances that may be humanitarianly taken into account the motive and background of the Plaintiff’s act of driving without a license, and the nature of the crime is relatively minor. In addition, the above crime was committed five years before the date of the instant disposition, and the Plaintiff’s fine was already invalidated (see Article 7(1)3 of the Act on the Lapse of Punishment, Etc.).

The Defendant appears to have judged that the Plaintiff failed to meet the requirements for the determination of conduct pursuant to Article 5-2 subparagraph 1 (c) of the Enforcement Rule of the Nationality Act, on the grounds that the Plaintiff was sentenced to a fine and was paid the fine for not more than five years. However, in light of the above specific circumstances, it may be deemed that there exist grounds under Article 5-2 subparagraph 2 of the above Enforcement Rule for the Plaintiff to commit the above crime. Therefore, it is difficult to deem that the Plaintiff’s conduct was not readily concluded.

D) On January 10, 2018, the Plaintiff failed to file a report within the statutory period, even though the passport number, date of issuance, effective period, etc. was changed, and thereby violated the obligation to report matters to be registered by a foreigner under Article 35 of the Immigration Control Act, and was imposed an administrative fine of KRW 200,000. However, the Plaintiff’s mere violation of the obligation to report under the status of being granted status of stay (F-2) and the degree of violation is relatively minor, and the degree of violation of public interest due to

E) Article 2 of the former Nationality Act (wholly amended by Act No. 541, Dec. 13, 1997) which was enforced at the time the Plaintiff was born provides that the father shall acquire the nationality of the Republic of Korea as a national of the Republic of Korea (Article 1 and 2), and that the mother shall acquire the nationality of the Republic of Korea only when the father is not clear or he is not a national of the Republic of Korea (Article 3). However, with the overall revision of the Nationality Act on December 13, 1997, Article 2(1)1 of the amended Nationality Act provides that the father or mother shall acquire the nationality of the Republic of Korea at the time of birth and at the same time as a national of the Republic of Korea (Article 7(1)1 of the Addenda of the amended Nationality Act). Article 7(1)1 of the amended Nationality Act provides that a person born within 10 years prior to the enforcement of the amended Nationality Act may be declared by the Minister of Justice as a national of the Republic of Korea within 20 years prior to the enforcement date of the amended Nationality Act.

The Plaintiff, a Korean national, was born on February 13, 1996, and was born on February 13, 199. Accordingly, pursuant to the amended Nationality Act and the Addenda to the amended Nationality Act, the Plaintiff was entitled to acquire the nationality of the Republic of Korea only if his legal representative files a report with the Minister of Justice by December 31, 2004. However, around March, 2003, C, a legal representative of the Plaintiff, did not file a report with the Minister of Justice for acquiring the nationality of the Republic of Korea until the said period expires after entry into the Republic of Korea. Ultimately, the Plaintiff lost the opportunity to acquire the nationality of the Republic of Korea against his/her will pursuant to the aforementioned Addenda. Such circumstances should also be considered as humanitarian circumstances prescribed in Article 5-2 subparagraph 2 of the Enforcement Rule of the Nationality Act.

F) The Defendant asserts that the Plaintiff had the history of investigating the offense of insult was based on the Plaintiff’s naturalization without permission. However, the Plaintiff was only subject to a disposition of non-prosecution on July 16, 2020 (no prosecution right) while being investigated for the offense of insult, and there is no specific evidence to presume that the said history is related to the Plaintiff’s bodily behavior. Therefore, the circumstance that the Plaintiff was investigated cannot be deemed to be difficult to readily conclude the Plaintiff’s bodily behavior.

3) Whether the discretionary authority was abused or deviates from or abused

As seen earlier, as the relevant provisions and legal principles, the Defendant has discretionary power to decide whether to permit naturalization even if an applicant for naturalization satisfies the requirements for naturalization under the Nationality Act. Therefore, even if the Plaintiff satisfies the requirements for determining naturalization, the Defendant has the discretion to refuse to apply for naturalization on the ground of the Plaintiff’sless driving power, etc., but the Defendant’s exercise of such discretionary power also becomes subject to judicial control.

In full view of the following circumstances, it is determined that the Defendant’s refusal of the Plaintiff’s naturalization on the grounds of the Plaintiff’s criminal records, etc. is an excessive harsh disposition compared to the public interest to be achieved, and that the Defendant deviates from and abused the discretion allowed to the Defendant.

① The Plaintiff’s mother is a national of the Republic of Korea, the Plaintiff’s living base was formed in the Republic of Korea under the name of “E” for at least 18 years after entering the Republic of Korea at the age of 7 years, and the Plaintiff entered the Republic of Korea. ② The Plaintiff could acquire the nationality of the Republic of Korea upon birth only if he files a report with the Minister of Justice within a given period in accordance with the Addenda to the amended Nationality Act, etc. on December 13, 1997, but the legal representative C lost an opportunity to acquire the nationality of the Republic of Korea, and C did not file a report within the said period. The Plaintiff was deprived of an opportunity to acquire the nationality of the Republic of Korea, but C did not receive regular education. ③ The Plaintiff’s violation of the law committed by the Plaintiff is difficult to look at the Plaintiff’s duty as seen earlier, or it was inevitable for the Plaintiff to live in the Republic of Korea without receiving education due to its regular identification problems, and it is not possible for the Plaintiff to be forced to benefit from social security within the Republic of Korea.

4) Sub-determination

On a different premise, the instant disposition should be revoked as it is unlawful.

3. Conclusion

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