[1] Legislative intent of Article 12 [Attachment 1] 28-4(c) of the former Enforcement Decree of the Immigration Control Act concerning the status of stay for the F-6 status of marriage immigrants (F-6), and the meaning of “a person who is unable to maintain a normal matrimonial relationship due to reasons not attributable to himself/herself,” which is the requirement for

[2] Where an administrative agency issues a rejection disposition against a foreigner applying for status of stay for the F-6 (c) of marriage immigration [F-6 (c)] on the grounds that the applicant fails to meet the requirements, the grounds for the disposition / In a lawsuit seeking revocation of status of stay for marriage immigration [F-6 (c)], the burden of proof on the grounds for the disposition

[3] Whether the court of the lawsuit of the administrative litigation can acknowledge the facts acknowledged in the relevant final and conclusive judgment (negative in principle), and whether the court of the lawsuit of the administrative agency or the administrative litigation shall respect the judgment rendered by the family court in the final and conclusive judgment on divorce regarding the granting of the status of stay to the marriage immigration [F-6 (c)] (affirmative in principle)

[1] The legislative purport of Article 12 [Attachment 1] 28-4 of the former Enforcement Decree of the Immigration Control Act (amended by Presidential Decree No. 29163, Sep. 18, 2018) concerning the status of stay of a her spouse [F-6 (c)] is to allow a foreigner who is unable to maintain a normal matrimonial relationship due to a cause attributable to his/her spouse while she is staying in the Republic of Korea after obtaining the status of stay from a national of the Republic of Korea (F-6 (a)] to continue to stay in the Republic of Korea by granting his/her status of stay to a her spouse (F-6 (c)] in humanitarian perspective. On the other hand, considering the fact that the dissolution of a marriage between her husband and wife arose from the former causes attributable to either party, it seems that the above provision on the status of stay of her spouse is strictly interpreted and thus, it can only be deemed that there is no legitimate cause attributable to her spouse’s right to divorce, such as where she is unable to maintain the status of stay for 6 (3).

[2] Where an administrative agency issues a rejection disposition against a foreigner applying for status of stay for the F-6 (c) of marriage immigration [F-6 (c)] on the ground that the foreigner failed to meet the requirements, the administrative agency’s determination that the foreigner was unable to meet the requirements, and again, the “decision that the principal causes for the dissolution of marriage are not for the spouse who is a citizen.” Various circumstances leading to the dissolution of marriage constitute the basis for such determination and assessment. In a lawsuit seeking a revocation disposition of status of stay for marriage immigration [F-6 (c)], the Plaintiff and the administrative agency must actively assert and prove the factors favorable to themselves, and the court of the lawsuit should determine whether the principal causes for the dissolution of marriage are for the reason that it is difficult for the administrative agency to ascertain the status of stay for the relevant marriage immigration [F-6 (c)] and the status of stay for the relevant marriage citizen [F-6 (c)] in such a sense that the administrative agency did not have any other reasonable understanding of the grounds for the revocation of status of stay for marriage in the Korean language prior to the revocation of status of marriage.

[3] Although the court of the lawsuit in charge of the administrative litigation is not bound by the fact-finding of the final judgment, the facts recognized in the final judgment concerned are significant evidence in the administrative litigation. Thus, barring special circumstances where it is deemed difficult to adopt the fact-finding of the final judgment in light of other evidence submitted in the administrative litigation, the facts opposed thereto cannot be acknowledged. Furthermore, the issue of whether the main reason for the dissolution of marriage exists can be expected in our judicial system to expect the judge of the family court to make the most specialized judgment, and barring special circumstances, the court of the administrative litigation or the court of the lawsuit in charge of the administrative litigation should respect the judgment issued by the family court in the final judgment of divorce (F-6 (c)), barring special circumstances. Even if the parties in the divorce lawsuit are partly omitted from the fact-finding and the judgment of liability of the final judgment of divorce, such circumstance should not be sufficiently careful to reverse the judgment of the final judgment of divorce and to make a judgment of the content different from the final judgment of divorce.

[1] Article 10(1) of the former Immigration Control Act (Amended by Act No. 15942, Mar. 20, 2018); Article 12 [Attachment Table 1] [Attachment Table 28-4] [Attachment Table 1] subparagraph 28-4 of the former Enforcement Decree of the Immigration Control Act (Amended by Presidential Decree No. 29163, Sep. 18, 2018); Article 10(1) of the former Immigration Control Act (Amended by Act No. 15942, Mar. 20, 2018); Article 12 [Attachment Table 1] subparagraph 28-4 of the former Enforcement Decree of the Immigration Control Act (Amended by Presidential Decree No. 29163, Sep. 18, 2018); Article 28 [Attachment Table 1] subparagraph 1 of the former Enforcement Decree of the Immigration Control Act (Amended by Act No. 29163, Sep. 27, 2018); Article 28 subparag. 19 of the former Enforcement Decree of the Immigration Control Act / [see Article 2019 of the former Administrative Litigation Act]

[3] Supreme Court Decision 2001Du1635 Decided January 25, 2002, Supreme Court Decision 2008Da92312, 92329 Decided September 24, 2009 (Gong2009Ha, 1740)

Plaintiff (English name omitted)

The head of the Seoul Southern Immigration Office

Seoul High Court Decision 2018Nu49736 decided November 27, 2018

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

The grounds of appeal are examined.

1. A. Article 10(1) of the former Immigration Control Act (amended by Act No. 15942, Mar. 20, 2018); Article 12 [Attachment Table 1] [Attachment Table 1] 28-4 of the former Enforcement Decree of the Immigration Control Act (amended by Presidential Decree No. 29163, Sep. 18, 2018) provides that the requirements for the status of stay of married immigrants (F-6) under delegation by Article 10(1) of the former Immigration Control Act (amended by Presidential Decree No. 29163, Sep. 18, 2018); “A person recognized by the Minister of Justice as a person who is a father or mother who raises a child born from a national marital relationship (including a de facto marital relationship) with a national, who is unable to maintain a normal marital relationship due to the death or disappearance of his/her spouse or any other cause not attributable to him/her.”

B. The legislative purport of the above provision on the status of stay for immigrants [F-6 (c)] is to allow a foreigner who is unable to maintain a normal matrimonial relationship due to a cause attributable to his/her spouse while married with a national of the Republic of Korea and staying in the Republic of Korea after obtaining the status of stay for the former marriage immigration [F-6 (a)] to grant the status of stay for marriage immigrants [F-6 (c)] to continue staying in the Republic of Korea from a humanitarian perspective. On the other hand, it seems that the cases where it can be deemed that a marriage dissolution between husband and wife arose from a former cause attributable to either spouse would be neither real nor many. However, it would be reasonable to strictly interpret the above provision on the status of stay for marriage immigrants [F-6 (c)] and to grant the status of stay for a spouse who is the sole cause attributable to divorce and who does not have any substantial cause attributable to a foreigner's spouse, and thus, it would be unreasonable to deny the status of stay for the latter from exercising his/her spouse's right of marriage for reasons not exceeding 1 year.”

C. Where an administrative agency issues a rejection disposition against a foreigner applying for status of stay for the F-6 (c) of marriage immigration [F-6 (c)] on the ground that the applicant for status of stay fails to meet the requirements, the “decision that the applicant fails to meet the requirements” and the “decision that the principal cause for the dissolution of marriage is not a spouse who is a citizen” itself becomes the ground for the disposition. Various circumstances caused by the couple’s dissolution of marriage constitute the basis for such a determination or assessment. In a lawsuit seeking a revocation disposition of status of stay for marriage immigration [F-6 (c)], the Plaintiff and the administrative agency must actively assert and prove the factors favorable to themselves, and the court of the lawsuit should determine whether the principal cause for the dissolution of marriage is a citizen.” In cases where the court of the lawsuit determines that “the principal cause for the dissolution of marriage lies in a spouse who is a citizen,” the pertinent marriage immigration [F-6 (c)] status of stay should be revoked by unlawful means, and in this sense, the Plaintiff’s burden of proof on the grounds for dissolution of marriage between the parties can not be considered in the reason for marriage.

D. Although the court of the lawsuit in charge of the administrative litigation is not bound by the fact-finding of the relevant final judgment, the facts recognized in the relevant final judgment are significant evidence in the administrative litigation. Thus, barring special circumstances where it is deemed difficult to adopt the fact-finding of the relevant final judgment in light of other evidence submitted in the administrative litigation, the facts opposed thereto cannot be acknowledged (see, e.g., Supreme Court Decisions 2001Du1635, Jan. 25, 2002; 2008Da92312, Sept. 24, 2009; 2008Da92329, Sept. 24, 2009). Furthermore, the issue of “whether the principal cause of the marriage dissolution is any person” can be expected to be the judge of the family court in our judicial system, and thus, the immigration control agency or the court of the lawsuit in charge of the administrative litigation should respect the judgment of divorce in the final judgment, barring special circumstances. Even if the parties fail to actively assert or prove the facts of divorce in the final judgment.

2. A. The reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted by the lower court reveal the following circumstances.

1) As a Vietnamese woman, the Plaintiff reported a marriage relationship with Nonparty 1, who is a national of the Republic of Korea, through an international marriage intermediary, and entered the Republic of Korea on July 1, 2015, and commenced a marriage relationship with Nonparty 1 on December 4, 2015, with the status of stay for marriage immigrants (F-6(a)) (F-6(a)).

2) The Plaintiff’s husband and wife resided in an officetel of the size of 00 ○○○○○○○ 8 square meters in Seo-gu, Incheon. Nonparty 1’s mother and Nonparty 2 resided in the officetel of 1016 immediately following the Plaintiff’s residence. Nonparty 2 operated convenience stores for 24 hours in the vicinity of his residence. Nonparty 1 worked at the convenience store and received a large monthly wage from Nonparty 2.

3) The Plaintiff, at the request of Nonparty 2, worked at the convenience store from January 2016. Since the Plaintiff did not employ other employees at the convenience store and work for three family members, the working hours were not fixed. Although Nonparty 2 wished to receive an equal amount of remuneration, Nonparty 2 did not pay any remuneration to the Plaintiff at all.

4) The Plaintiff was pregnant on and around February 2016, but was working at the convenience store as usual. On February 25, 2016, the five week pregnant, the Plaintiff was treated with Nonparty 2 at the △ Hospital located at a distance of about 1.2km from his residence, and was given medical treatment with Nonparty 2. Although Nonparty 2 explained that he should take a stability and rest to prevent miscarriage from being hospitalized at the time, Nonparty 2 had the Plaintiff go home again without receiving hospitalized treatment. The Plaintiff worked at the convenience store at the time of Nonparty 2, and was diagnosed as having been diagnosed as having been given a miscarriage at the △ Hospital on the next day. After that day, the Plaintiff took a rest at the home for about one week, and was given a rest at the convenience store, and then he was able to go home again without having the Plaintiff go home again.

5) The Plaintiff was working at the convenience store but failed to receive any remuneration from Nonparty 2, and was unable to receive monthly fixed living expenses from Nonparty 1 each month, and there was a complaint that Nonparty 1 did not have any money that he/she could use at his/her own discretion by obtaining a credit card with the credit card and immediately return it whenever every money is used, and thus, he/she was working at the ginseng duty-free shop from the end of May 2016 with the permission of Nonparty 1 and Nonparty 2 in order to collect his/her own money.

6) Without the Plaintiff, Nonparty 2 and Nonparty 1 were able to operate the convenience store, and Nonparty 2 retired from the ginseng duty-free shop service at the convenience store. Accordingly, on July 12, 2016, the Plaintiff demanded Nonparty 2 to provide a fixed amount of KRW 1,900,000 to the husband and wife each month by adding Nonparty 1’s benefits to the Plaintiff’s convenience store. However, Nonparty 2 proposed that the Plaintiff would pay KRW 1,50,000 per month to the Plaintiff’s husband and wife, and Nonparty 2 refused this, Nonparty 2 was able to provide the Plaintiff with a large amount of 50,000 interest per month, and Nonparty 1 was able to get the Plaintiff back to the Plaintiff’s clothes at the home if Nonparty 2 did not work at the convenience store, and Nonparty 2 was able to get off the Plaintiff’s 7th day after Nonparty 1’s withdrawal from the Plaintiff’s travel office.

7) On July 28, 2016, the Plaintiff appointed an attorney-at-law as a legal representative and filed a divorce lawsuit against Nonparty 1 with the Incheon Family Court. Nonparty 1 also appointed an attorney-at-law as a legal representative and respondeded to the lawsuit. The Plaintiff’s legal representative proposed to Nonparty 1’s legal representative that “in case where Nonparty 1’s lawsuit is recognized as a cause attributable to the dissolution of marriage, and the lawsuit is concluded early, it would not receive consolation money or litigation cost from Nonparty 1 even if the judgment in favor of the Plaintiff was rendered.” Nonparty 1’s legal representative explained that Nonparty 1 should pay the Plaintiff’s legal representative for the expenses of appointing the Plaintiff’s legal representative. Accordingly, Nonparty 1 had the legal representative submit a preparatory document recognizing his/her responsibility.

8) Comprehensively taking account of all kinds of evidence submitted by the Plaintiff, Nonparty 1 submitted a preparatory document recognizing his/her own responsibility, the Incheon Family Court rendered a judgment that “the Plaintiff and Nonparty 1 shall be divorced, and Nonparty 1 shall pay the Plaintiff KRW 1,00,000 to the Plaintiff as consolation money,” and the judgment became final and conclusive as it was without appeal by both parties (Seoul Family Court Decision 2016Ddan107561, Jan. 25, 2017; hereinafter “instant final and conclusive divorce judgment”).

9) On May 18, 2017, the Plaintiff made a fact-finding survey to the Defendant on May 18, 2017, on the following grounds: (a) defect in the application for permission for stay status of married immigrants (F-6 (c)); and (b) the public officials belonging to the Defendant met the Plaintiff and Nonparty 1 to listen to the details of divorce; (c) at the time, Nonparty 1 stated to the effect that “the Plaintiff, who was in conflict with Nonparty 2 due to the Plaintiff’s attendance at work, went back to his house after having talked with Nonparty 2; and (d) the Plaintiff’s attorney was unable to live in Korea if he did not recognize his responsibility from the Plaintiff in the divorce lawsuit, and submitted a preparatory document recognizing his responsibility to the Family Court.” Accordingly, even based on the instant final divorce judgment itself, the Defendant did not fall under the primary reason for Nonparty 1, but did not fall short of credibility in the judgment of the instant final divorce judgment based on Nonparty 1’s statement in the fact-finding survey.”

B. We examine the above facts in accordance with the legal principles as seen earlier.

1) On February 25, 2016, when there is a miscarriage in the early stage of pregnancy, the Plaintiff was not given a special care from his family, and the pregnant woman was at a reasonable distance from her walking, and was at the hospital. Although the doctor's explanation that she should take stability and rest, she did not undergo hospitalized treatment or leave at home, she did not leave the convenience store again due to Non-Party 2's demand, and had her actual miscarriage. This, at least from the Plaintiff's standpoint, can be viewed as an unfair treatment of her mother, and during that process, Non-Party 1 did not take appropriate measures, and accordingly, the address of the Plaintiff's mind was not properly cured until the time of separation and divorce. It seems that Non-Party 1's serious causes attributable to Non-Party 1.

2) Husband and wife is obliged to live in accordance with the economic form of each family. Thus, it cannot be viewed as a cause attributable to Nonparty 2 or Nonparty 1’s failure to pay the Plaintiff living expenses by means of the operation of the convenience store. Moreover, as the Plaintiff did not receive the daily remuneration and did not want to work at the convenience store for the Plaintiff, and Nonparty 1 consented, it cannot be viewed as a cause attributable to the marriage wave of the Plaintiff. However, it is reasonable to unilaterally consider Nonparty 2 to leave the Plaintiff at the convenience store after the Plaintiff was not in another workplace, and to unilaterally prepare and withdraw the Plaintiff’s 1’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son and Nonparty 1’s 6’s son’s son’s son.

3) Therefore, it is justifiable to determine that the Incheon Family Court has broken down a marriage due to Nonparty 1’s primary causes attributable to Nonparty 1 in the instant divorce final judgment. Nonparty 1’s proposal of the Plaintiff’s legal representative in a divorce lawsuit and submitted a preparatory document to the effect that there was a cause attributable to the marriage to himself/herself is not a false confession, but rather a false confession, and it appears that he/she and Nonparty 2 committed an error and was actually committed by himself/herself and the Plaintiff, and that he/she did so with an unfortunate mind. Even if there was an unofficial agreement between both parties of a divorce lawsuit to the effect that the other party would not enforce consolation money or litigation costs if the lawsuit is concluded early by recognizing the party’s net liability, it shall be deemed that there was no influence on the legitimacy of the instant divorce final judgment regardless of whether the Incheon Family Court had known the existence of such agreement.

C. Nevertheless, in order for the Plaintiff to be granted the status of stay for marriage immigrants (F-6 (c)), the lower court determined that the Plaintiff was not in compliance with the requirements for the status of stay for marriage immigrants [F-6 (c)] since the Plaintiff was fully responsible for the Mad-6 (c). The lower court erred by misapprehending the legal doctrine on the interpretation of the requirements for the status of stay for marriage immigrants [F-6 (c)] and the burden of proof, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. 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 Ahn Jae-chul (Presiding Justice)