209Do13944 Violation of the Immigration Control Act

1. king (1***.*.*.*..*. birth)

National Map at the time of housing separation;

State of nationality

2. Voluntary Retirement (***.*.*..*. birth)

Residential Displacement

State of nationality

3. Countries of origin (****.*.*.*. birth)

Residential Displacement

Nationality

4. 온▩▩ ( * * * *. *. * *. 생 )

Residential Displacement

Nationality

Prosecutor (In respect of Defendants)

Attorney Ansan-ho (Law No. 500,000)

Chuncheon District Court Decision 2009Do249, 631 (Consolidation) Decided November 20, 2009

March 11, 2010

All appeals are dismissed.

We examine the grounds of appeal.

1. A. Article 10(1) of the Immigration Control Act (hereinafter referred to as the "Act") provides that any foreigner who intends to enter the Republic of Korea shall have the status of sojourn prescribed by the Presidential Decree (Article 10(1) of the Act), and Article 12 of the Enforcement Decree of the Immigration Control Act by delegation by the authority (hereinafter referred to as the "Enforcement Decree"). Article 17(1) of the Act provides that any foreigner may stay in the Republic of Korea within the scope of his/her status of sojourn and the period of sojourn. Article 94(5) of the Act provides that any person who violates the provisions concerning his/her status of sojourn under Article 17(1) of the Act shall be punished by imprisonment with or without labor for not more than three years or by a fine not exceeding 20,000 won. Thus, in order to ensure that he/she violates the provisions concerning his/her status of sojourn under Article 17(1) of the Act, even if he/she does not lose his/her status of sojourn, it is difficult to view that he/she is subject to criminal punishment under other Acts.

In the same purport, the court below is just in holding that the defendants did not constitute a violation of Article 94 subparagraph 5 of the Act and Article 17 (1) of the Act merely because the defendants committed criminal acts as stated in its holding while staying in Korea with the status of stay in the tourist transit, and there is no error of law by misunderstanding the legal principles as to

B. According to the attached Table 1-9 of Article 12 of the Enforcement Decree concerning the status of stay, a person who intends to engage in short-term employment for the purpose of profit requires the status of stay of short-term employment. However, among the facts charged against Defendant Whn, the statement that " engaging in an act contrary to each tourism status among the facts charged against Defendant Whn's tourism status and other employment status." cannot be deemed as having specified the specific facts charged, and even after examining the record, there is no evidence to find it possible to find that the Defendants committed an act in addition to Defendant Whn State, Jin, and Voluntary confession. Thus, the lower court's conclusion is just, and there is no error in the misapprehension of legal principles that affected the conclusion of the judgment.

2. As long as Article 17(1) of the Act provides that the foreigner shall stay only within the scope of his sojourn status and the period of sojourn, the foreigner shall not stay within the scope of his sojourn status, the foreigner shall be subject to the violation of Article 17(1). However, if the two acts are conducted continuously under the single criminal intent, it is reasonable to deem that a single crime is constituted by combining them.

Under such premise, the court below is justified in holding that the judgment of the court of first instance does not affect the conclusion of the judgment even if the judgment on the violation of status of stay was partially omitted, and it did not affect the conclusion of the judgment, as long as the court below judged that the violation of status of stay under Article 94 subparagraph 5 and Article 17 (1) of the Act was expired as stated in its reasoning among the facts charged against the Defendants.

No error of omission, etc. shall be found.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae

Justices Kim Gin-tae

Justices Jeon Soo-ahn (Presiding Justice)

Justices Yang Chang-soo