[1] Whether the period can be calculated differently according to the foreigner's sojourn status under Article 12 of the Enforcement Decree of the Immigration Control Act when determining whether an applicant for naturalization satisfies the domestic residency requirement (negative)

[2] Whether the Minister of Justice has discretion to decide whether to allow naturalization to an applicant who satisfies the naturalization requirements under the law (affirmative)

[1] In light of the language and structure of Article 6(1) of the Nationality Act, Article 5 of the Enforcement Rule of the Nationality Act, and the meaning, characteristics and role of the domestic domicile requirement in the simplified naturalization procedure and the general naturalization procedure, the calculation of the period does not vary depending on the foreigner’s sojourn status under Article 12 of the Enforcement Decree of the Immigration Control Act when determining whether an applicant for naturalization satisfies the domestic domicile requirement.

[2] Nationality is determined to be a citizen's qualification, and the person who acquires it becomes a sovereign of the State, and at the same time becomes the object of the nation's sovereignty, permission for naturalization constitutes an act of comprehensively establishing a legal status as a citizen by granting the nationality of the Republic of Korea to foreigners. Meanwhile, no provision exists to deem that a foreigner granted a right to acquire the nationality of the Republic of Korea to anywhere in the relevant statutes, such as the Nationality Act, etc. In light of the form and language of the provisions on the basis of permission for naturalization, and the contents and characteristics of permission for naturalization, the Minister of Justice has discretion to determine

[1] Article 6 (1) of the Nationality Act, Article 5 of the Enforcement Rule of the Nationality Act / [2] Article 4 (1) and (2) of the Nationality Act

Plaintiff (Attorney Kim Jong-ro, Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul High Court Decision 2009Nu11135 decided October 6, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. On the second ground for appeal

Article 6(1) of the Nationality Act provides that “A foreigner shall have a domicile in the Republic of Korea for at least three consecutive years” as a requirement for simplified naturalization (hereinafter “domestic residency requirements”). Article 5 of the Enforcement Rule of the Nationality Act provides that “the period under Article 6 of the Nationality Act shall be the period during which the foreigner has lawfully entered the Republic of Korea and has continued to stay in the Republic of Korea after completing the foreigner registration.” In light of the language and text of the provision of the Act, the language and structure of the provision of the Act, the meaning, characteristics, and roles of the domestic domicile requirement in the simplified naturalization procedure, and the general naturalization procedure, the calculation of the period is not different depending on the foreigner’s sojourn status under Article 12 of the Enforcement Decree of the Immigration Control Act in determining whether the applicant for naturalization satisfies the domestic residency requirement.

In the same purport, the court below is just in holding that the plaintiff met the domestic residency requirements of simplified naturalization including the period during which the plaintiff resided as "other (G-1) sojourn status" under Article 12 [Attachment Table 1] of the Enforcement Decree of the Immigration Control Act, and contrary to the allegations in the grounds of appeal, there is no error of law such as misunderstanding of the legal principles as to

2. On the first ground for appeal

Whether an administrative act is a discretionary act shall be determined by considering both the system, form and language of the law that served as the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, the individual nature and type of the pertinent act itself (see Supreme Court Decision 98Du17593, Feb. 9, 200, etc.).

Article 4(1) of the Nationality Act provides that "A foreigner may acquire the nationality of the Republic of Korea by obtaining permission for naturalization from the Minister of Justice." Article 4(2) provides that "The Minister of Justice shall, after examining whether a foreigner satisfies the requirements for naturalization, grant permission for naturalization only to a person who meets the requirements." However, the language of each of the above provisions alone is not clear as to whether a foreigner who satisfies the requirements for naturalization under the law must be permitted naturalization.

However, nationality is determined to be a citizen's qualification, and a person who acquires it becomes the subject of the State's sovereignty at the same time, and 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. On the other hand, 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 Acts and subordinate statutes, such as the Nationality Act. In light of the form and language of the provisions on the basis of permission for naturalization, and the contents and characteristics of permission for naturalization, it is reasonable to deem that the Minister of Justice

On a different premise, the lower court determined that the Defendant’s disposition of denial of naturalization of this case was unlawful by taking into account the details of Plaintiff’s status of stay and the circumstances leading to granting status of stay into account. In so determining, the lower court erred by misapprehending the legal doctrine on the legal nature of naturalization, thereby adversely affecting the conclusion of the judgment

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)