In a case where Gap who entered the Republic of Korea and resided in the Republic of Korea as a refugee status F-2 after obtaining permission for admission from a public special school and received a diagnosis of brain disease disorders at a hospital and applied for registration of disabled persons to the head of the competent Gu to receive welfare services, such as dispatching assistants to assist the school school and hospital, but the head of the Gu rejected the application and rejected the registration of disabled persons on the ground that the status of stay of disabled persons is not allowed for the registration of disabled persons, the case holding that the above disposition is unlawful on the ground that Gap, a refugee status, registered disabled persons pursuant to Article 32(1) of the Welfare of Disabled Persons Act and the right to receive welfare services accordingly is recognized.

In a case where Party A, who entered the Republic of Korea and resided in the Republic of Korea with F-2 status recognized as a refugee, was an applicant for registration of disabled persons to receive welfare services for disabled persons such as the dispatch of disabled persons to school and hospital principals through diagnosis of brain-disease disorders at a hospital, but the head of the Gu rejected Party A’s registration on the ground that the applicant’s status of stay is not allowed, the case holding that under Article 30 of the Refugee Act, a person recognized as a refugee staying in the Republic of Korea pursuant to Article 24(1) of the Refugee Convention of 1951 (hereinafter “Refugee Convention”) is treated as a refugee in accordance with Article 30(1) of the Refugee Convention of 1951 (hereinafter “Refugee Convention”), and Article 31 of the Refugee Act provides that a Contracting State shall legally stay in the Republic of Korea provide the same treatment as that granted to the citizens of the Republic of Korea with respect to social security services, and that Article 32(2) of the Disabled Persons Act does not constitute an unlawful provision of the Act on Welfare of Disabled Persons with Disabilities.

Articles 32(1) and 32-2(1) of the Welfare of Disabled Persons Act; Articles 30, 31, 32, and 33 of the Refugee Act; Articles 24 of the 1951 Convention Relating to the Status of Refugees

Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Han Chang-chul et al., Counsel for plaintiff-appellant)

Head of Gangseo-gu Busan Metropolitan City

Busan District Court Decision 2017Guhap20683 Decided June 9, 2017

September 22, 2017

1. Revocation of the first instance judgment.

2. The defendant's disposition to deny the registration of disabled persons as of January 19, 2017 against the plaintiff and the disposition to deny the registration of disabled persons as of January 26, 2017 shall be revoked.

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

The first instance judgment shall be revoked. Alternatively, the defendant's disposition to deny the registration of disabled persons against the plaintiff on January 26, 2017 or the disposition to deny the registration of disabled persons on January 19, 2017 shall be revoked.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the main defense of this case

This Court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

A recognized refugee has a direct right to demand social security of the same level as Korean nationals, even if the relevant statutes do not separately stipulate the right to a recognized refugee pursuant to Article 31 of the Refugee Act. Moreover, if a recognized refugee does not recognize the registration of a disabled person, it would be more unfavorable than Korean nationals and other foreigners who can apply for the registration of a disabled person, thereby violating the principle of equality. Therefore, even if a recognized refugee applicant is entitled to make a registration of a disabled person based on Article 31 of the Refugee Act and Article 32(1) of the Welfare of Disabled Persons Act, the first and second dispositions of this case refusing to apply for the registration of a disabled person are unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In light of the following circumstances, the above recognition facts, Gap evidence Nos. 3 through 11, Eul evidence Nos. 5 and 6, and the purport of the whole arguments, a refugee status applicant is recognized pursuant to Article 32(1) of the Act on Welfare of Persons with Disabilities, Articles 31 and 30(1) of the Refugee Act, Article 24 of the 1951 Convention Relating to the Status of Refugees (hereinafter "Refugee Convention"), and the 1967 Protocol Relating to the Status of Refugees, and the right to register the disabled and receive welfare services accordingly. Nevertheless, the plaintiff, a refugee status applicant, refused to apply for registration of the disabled on the ground that he/she does not fall under a foreigner under Article 32-2 of the Act on Welfare of Persons with Disabilities, should be revoked on the ground that the first and second dispositions of this case are unlawful.

① According to Article 30 of the Refugee Act enacted for the purpose of prescribing matters concerning the status, treatment, etc. of refugees pursuant to the Refugee Convention and the 1967 Protocol, etc. relating to the Status of Refugees, a person recognized as a refugee who stays in Korea shall, notwithstanding other Acts, receive treatment pursuant to the Refugee Convention (Paragraph 1), and the State and local governments shall take measures, such as formulating and implementing policies on the treatment of refugees, amending relevant Acts and subordinate statutes, and providing support to relevant ministries, etc. (Paragraph 2). Meanwhile, since Korea is a party to the Refugee Convention without any reservation, various provisions regarding the rights of refugees under the Refugee Convention are effective in domestic law. However, under Article 24(1) of the Refugee Convention, a Contracting State accords a person who legally stays in its territory with respect to social security (industrial accidents, occupational illness, maternity protection, illness, old age, death, unemployment, unemployment, family support, as well as other laws and regulations on benefits that may be the object of social security system).

② According to Article 31 of the Refugee Act, Article 8 of the Framework Act on Social Security provides that any foreigner who resides in the Republic of Korea as a refugee shall receive a level of social security equal to Korean nationals, notwithstanding Article 8 of the same Act. Article 8 of the Framework Act on Social Security provides that any foreigner who resides in the Republic of Korea shall comply with the principle of reciprocity when applying the social security system to any foreigner who resides in the Republic of Korea. This appears to have taken the legislative form as above in preparation for the difference in the application of a refugee according to the relevant laws and regulations or the application of a refugee as a ground for the exclusion of the application of a refugee to any foreigner. Therefore, even if the social security-related laws and regulations stipulate the restriction on social security to any foreigner or the special exception to social security, a foreigner who resides in the Republic of Korea shall be deemed to have the same level of social security as Korean nationals, notwithstanding such provisions. On the other hand, if it is necessary in light of the purport of the above provisions, the relevant laws and regulations shall clearly stipulate the restriction on

③ Articles 30(1), 31, 32, 33(1), 37) and discretionary rules (Articles 30(2), 34, 35, and 36), which provide for the treatment of recognized refugees under the Refugee Act, are divided into the express provisions (Articles 30(1), 31, 32, 33(1), and 37). Articles 30 and 31 of the Refugee Act constitute the express provisions.

④ Article 32 of the Refugee Act recognizes the right of a recognized refugee under Articles 7 through 15 of the National Basic Living Security Act. However, since the National Basic Living Security Act, which serves as the basic law in public assistance, specifically regulates the right to public assistance, it appears that the said provisions are applied as a matter of course to a recognized refugee. Meanwhile, Article 32 of the Refugee Act stipulates that Article 31 of the Refugee Act is stipulated as above, and Article 31 of the same Act is not granted the right to social security under the Framework Act on Social Security in light of the general provision or declared provision under Article 31 of the Refugee Act. Article 33 of the Refugee Act provides that a recognized refugee or his/her child, who is a minor, shall receive elementary education and secondary education equal to the national in cases of a recognized refugee under the Civil Act, and Article 8(2) of the Framework Act on Education provides that all citizens shall have the right to receive compulsory education under paragraph (1) and Article 30 of the same Act does not apply to a recognized refugee education under the Framework Act.

⑤ The Act on Welfare of Persons with Disabilities enacted as the Framework Act on the Welfare of Persons with Disabilities provides for the requirements for registration of persons with disabilities and the protection of persons with disabilities registered. Notwithstanding Articles 30 and 31 of the Act on Welfare of Persons with Disabilities, foreigners are eligible for registration of persons with disabilities only if they meet the requirements prescribed in each subparagraph of Article 32-2(1) of the Act on Welfare of Persons with Disabilities. In the case of foreigners with disabilities, status of stay (F-2) is granted pursuant to Article 12 [Attachment Table 1] 27(c) of the Enforcement Decree of the Act on Welfare of Persons with Disabilities. According to Article 32-2(1)3 of the Act on Welfare of Persons with Disabilities, foreigners with disabilities are not eligible for registration of persons with disabilities. However, Article 32-2 of the Act on Welfare of Persons with Disabilities provides that foreigners who meet certain requirements to expand the welfare of persons with disabilities shall not be deemed as having been registered as persons with disabilities, notwithstanding Article 32-2 of the Act on Welfare of Persons with Disabilities, Article 32-2 of the Act on Welfare of Persons with Disabilities is reasonable to interpret.

(6) Meanwhile, according to the reasons for the enactment of the Refugee Act, "the Republic of Korea regulates the procedures for recognition of refugee in the Immigration Control Act since it entered into the Convention on the Status of Refugees and the Protocol thereto on the Status of Refugees on December 192, 192, but the Immigration Control Act regulates the procedures for recognition of refugee in the international community since it has not been fully admitted refugee compared to other developed countries, it is not responsible for the international community. There are continuous domestic and foreign problems with respect to the promptness, transparency, and fairness of the procedures for recognition of refugee status, and there are many problems with respect to the treatment of refugee, such as the right to guarantee the status of refugee even if a person has been recognized as a refugee, and the right to guarantee the status of refugee does not enjoy even if the person has been recognized as a refugee, the person who has been recognized as a refugee in a foreign country is entitled to receive the same level of social security as the national of the Republic of Korea, the national or his children are entitled to protection under the National Basic Living Security Act, and Article 30 of the Elementary and Secondary Education Act."

7) A victim who has deprived of a refugee’s political or religious freedom due to a political or religious suppression, or a victim of disaster who is in need of a refuge place due to war or natural disaster shall not be allowed to leave him/her only to a foreigner, including a native country and a native country. They are victims whose universal value has been infringed or whose universal value has been lost due to force majeure, and thus, they need to be protected by the fundamental rights provisions of the Constitution and the purport of the enactment of the Refugee Act as well as by the following: (a) the victim is the victim whose universal value has been infringed or whose universal value has been lost due to a re

(8) The National Human Rights Commission recommend that the Minister of Health and Welfare revise the Act on Welfare of Persons with Disabilities so that refugees can register persons with disabilities and receive support for welfare programs for persons with disabilities, and the National Assembly also proposes an amendment to the Act on Welfare of Persons with Disabilities, including recognized refugees and their families, and the National Assembly does not deem that a person recognized as a refugee has no specific right under Articles 30 and 31 of the Refugee Act, on the ground that the amendment procedure is in progress.

4. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the first instance is unfair on the grounds of its conclusion, the plaintiff's appeal is accepted and the judgment of the first instance is revoked, and the first and second dispositions of this case

[Attachment] Relevant Statutes: omitted

Judges Kim Jong-cheon (Presiding Judge) and the Republic of Korea