(영문) 수원지방법원 2014.6.11.선고 2013구합20746 판결

A. The Plaintiff, as a Korean Chinese national on April 7, 2013, entered the Republic of Korea with a visa for short-term visits (C-3) on a short-term basis, and continued to stay in the Republic of Korea after obtaining permission to change his/her status of stay to an overseas Korean (F-4) on May 20, 2013.

B. On October 4, 2013, the Plaintiff was sentenced to a suspended sentence of two years in one year and six months as a result of a violation of the Punishment of Violences, etc. Act (hereinafter “instant crime”), and the said judgment was finalized by the lapse of the period of appeal.

At around 00:35 on May 2, 2013, Plaintiff, B, C, and D, in front of “F of the first floor of the Do Building in Ansan-si, A”, while walking along B’s wife G, the victim H(31), 1(31), and J(3) are faced with shouldering, and they were in dispute.

The plaintiff joint with B, C, and 1:

1. The victim H by taking part in the above date, at the above place, B, CU victim H and I, and the victim H by drinking only once, and the victim’s h’s face by drinking it, the victim’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’,

2. In the same date and at the same place, the victim J, who was in the work of the above H, was fluored by drinking the face and body of the above victim, and the head was boomed by several times, thereby causing injury to the above victim, such as cather cather catum and tensions requiring approximately two weeks of treatment. On December 11, 2013, the Defendant ordered the Plaintiff to leave the Republic of Korea until December 29, 2013 pursuant to Articles 11(1), 46(1), and 68(1) of the Immigration Control Act (hereinafter “instant disposition”).

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

A. The plaintiff's assertion

1) The Plaintiff does not constitute “a person who was sentenced to imprisonment without prison labor or heavier punishment,” as provided by Article 46(1)13 of the Immigration Control Act, upon being sentenced to a suspended sentence, even when the Plaintiff was sentenced to a criminal investigation from the beginning with respect to the instant crime, and was sentenced to a suspended sentence, and was released. In light of the record of the first ② crime, etc., the instant disposition based on the above provisions is unlawful, since it cannot be said that there is considerable reason for stabilizing that there is a concern for harming the interest or public security of the Republic of Korea or that there is a concern for doing any act detrimental to social order or good morals.

2) Considering that the instant crime is an contingent, and the degree of illegality or social criticism is not significant in light of its circumstances, and that the Plaintiff ought to look at a mother who is not healthy in Korea, the instant disposition is considerably harsh to the Plaintiff’s private interest that is infringed compared to the public interest intended to achieve the instant disposition, and thus, is in violation of law of deviation from and abuse of discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the act constitutes Article 46(1) of the Immigration Control Act

A) First of all, we examine whether the plaintiff falls under Article 46 (1) 13 of the Immigration Control Act. Article 46 (1) 13 of the Immigration Control Act provides that "a person who was sentenced to imprisonment without prison labor or heavier punishment" shall be subject to compulsory expulsion. Here, if a suspended sentence is pronounced, it cannot be readily determined that there is no sociality. The Criminal Procedure Act also provides that a suspect who was arrested shall be released immediately (see, e.g., Articles 200-2, 200-4, and 21.3-2 of the Criminal Procedure Act). The meaning of the above "Release" refers only to a person who was released" under the provision of the Immigration Control Act and Article 46 (1) 13 of the Immigration Control Act, and thus, it does not mean that the plaintiff is subject to suspended or exempted from the sentence of imprisonment without prison labor or imprisonment without prison labor, regardless of whether he/she was subject to suspended or exempted from the sentence of imprisonment without prison labor or imprisonment without prison labor.

2) Whether the discretion is deviates or abused or not

Article 68(1)1 of the Immigration Control Act provides that the head of the Immigration Control Office, etc. may order the departure of any foreigner who intends to depart from the Republic of Korea at his/her own expense, but who intends to depart from the Republic of Korea at his/her own expense. In full view of the legislative purpose and characteristics of the departure order that the head of the Immigration Control Office intends to achieve through the departure order, including the form, language, and system of the provision of the Act and subordinate statutes, it is reasonable to deem that the head

In light of the following circumstances, even if the crime of this case is contingent and the degree of the plaintiff's participation is not high, considering the degree of injury to the victims, the sentence against the plaintiff and his accomplice, etc., the contents of the crime of this case committed by the plaintiff cannot be deemed to be less severe. ② The defendant may order the plaintiff to voluntarily leave the Republic of Korea, but it seems that the defendant submitted the certificate of departure guarantee and the documents of departure ticket to give the plaintiff an opportunity to voluntarily leave the Republic of Korea, and the disposition of this case is more favorable than the situation that the plaintiff is currently 23 years of age, and thus, it is somewhat difficult to establish again the foreigner's right to stay in China again by the time limit of 22 years of age. In light of the above circumstances, it is difficult to consider the foreigner's interest and the foreigner's right to stay in the Republic of Korea, and it is not reasonable to consider the foreigner's interest and the foreigner's right to enter the Republic of Korea's right to control the foreigner's entry and departure from the Republic of Korea.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.