In Article 9 (2) 2 of the Nationality Act, the meaning of “a person whose conduct is not decent” and the method of determining whether the person falls under such “a person whose conduct is not decent”

Article 9(1) of the Nationality Act provides, “A foreigner who was a national of the Republic of Korea may obtain the nationality of the Republic of Korea after obtaining permission for restoring nationality from the Minister of Justice.” Article 9(2) provides, “The Minister of Justice shall not permit the reinstatement of nationality to a person falling under any of the following subparagraphs.” Article 9(1) provides, “A person whose conduct is not good” among subparagraph 2 provides, “

Here, “a person whose conduct is not good” refers to “a person who is not equipped with a character and behavior to the extent that it does not impede accepting an applicant for recovery of nationality as a member of the Republic of Korea again,” and such person ought to be determined by comprehensively taking into account various circumstances, such as the gender, age, family, occupation, career, and criminal records of the applicant for recovery of nationality. In particular, regarding criminal records, not only whether the applicant has committed a crime but also the content of the crime, the degree of punishment, the circumstances at the time of the crime and after the crime, and the period from the date of the crime to the date of disposition

Article 9 (1) and (2) of the Nationality Act

Plaintiff (Law Firm Seog, Attorneys Choi Jin-young et al., Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul High Court Decision 2017Nu39664 decided August 17, 2017

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 9(1) of the Nationality Act provides, “A foreigner who was a national of the Republic of Korea may obtain the nationality of the Republic of Korea after obtaining permission for restoring nationality from the Minister of Justice.” Article 9(2) provides, “The Minister of Justice shall not permit the reinstatement of nationality to a person falling under any of the following subparagraphs.” As one of the subparagraphs 2 provides, “A person whose conduct is not good”.

Here, “a person whose conduct is not good” refers to “a person who is not equipped with a character and behavior to the extent that it does not impede accepting an applicant for recovery of nationality as a member of the Republic of Korea again,” and such person shall be determined by comprehensively taking into account all the circumstances, such as the gender, age, family, occupation, career, and criminal records of the applicant for recovery of nationality. In particular, regarding criminal records, not only whether the applicant has committed a crime but also various circumstances, such as the content of the crime, the degree of punishment, the circumstances at the time of the crime and after the crime, and the period from the date of the crime to the

2. The lower court determined that the instant disposition for which the Plaintiff did not permit the restoration of nationality was lawful on the ground that the Plaintiff constitutes “a person whose conduct is not good,” on the ground that the Plaintiff’s act constitutes “a person whose conduct is not good,” and that the Plaintiff’s act constitutes “a person whose conduct is not good,” in light of the motive and background of the Plaintiff’s act and the high moral standards and social influence according to the status of the educator, etc.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the records, the following facts are revealed: (a) the Plaintiff acquired U.S. nationality as a male living in 1956 on or around March 15, 2002; (b) from around September 2006, the Plaintiff’s spouse and children were living in the Republic of Korea; and (c) the Plaintiff is working as a principal or director of a school juristic person, an incorporated foundation, etc. after returning to the Republic of Korea on or around September 2006; and (c) the Plaintiff was punished for an accusation and perjury; (d) each of the above crimes was recognized as arising from a dispute between relatives; and (iv) the remaining criminal records of the Plaintiff were punished for an injury by occupational negligence and a fine of KRW 1.5 million on or around September 1, 201, and received a summary order of KRW 1.5 million on or around a fine for an injury by occupational negligence.

B. Examining such various circumstances in light of the legal principles as seen earlier, it cannot be deemed that an administrative agency is deemed to have a discretionary authority to determine whether a good conduct is not good, and the crime committed by the Plaintiff is considered to have relatively low impact on the general public of members of the community. It cannot be said that the Plaintiff’s character and behavior cannot be readily concluded to the extent that it cannot be accepted again as a member of the Republic of Korea on the sole basis of the fact that the Plaintiff had been punished for the above crime. Accordingly, the instant disposition was unlawful.

C. Nevertheless, the lower court determined that the instant disposition was lawful on the grounds indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for recovery of nationality, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)