[1] Whether the period can be calculated differently according to the foreigner's sojourn status under Article 12 of the Enforcement Decree of the Immigration Control Act when determining whether an applicant for naturalization satisfies the domestic residency requirement (negative)

[2] Whether the Minister of Justice has discretion as to whether to permit naturalization to an applicant who satisfies the naturalization requirements under the law (affirmative)

[3] In a case where the Minister of Justice rendered a disposition of non-permission of naturalization on the ground that an application for simplified naturalization by a foreigner who has resided in the Republic of Korea for more than three consecutive years with his/her visit employment status or other sojourn status cannot be deemed as satisfying the requirements for simplified naturalization, the case holding that the court below erred in the misapprehension of legal principles as to the legal nature of naturalization, and that the disposition of non-permission of naturalization is unlawful on the ground that the above disposition of non-permission of naturalization is unlawful on the ground that the status of visit employment status or other sojourn status can meet the domestic domicile requirements for simplified naturalization on the ground that the above status of visit employment status or other sojourn status can meet the requirements for simplified naturalization

[1] Article 6 (1) of the Nationality Act provides that "a foreigner who has sustained domicile in the Republic of Korea for not less than three consecutive years" as a requirement for simplified naturalization, and Article 5 of the Enforcement Rule of the Nationality Act provides that "the period under Article 6 of the Act shall be the period during which a foreigner lawfully enters the Republic of Korea and has completed the foreigner registration and has been staying in the Republic of Korea." Thus, in determining whether an applicant for naturalization satisfies the domestic residency requirements, the calculation of the period shall not vary according to the foreigner's sojourn status under Article 12 of the Enforcement Decree of the Immigration Control Act.

[2] Article 4(1) of the Nationality Act provides that "A foreigner may acquire Korean nationality by obtaining permission for naturalization from the Minister of Justice." Article 4(2) provides that "The Minister of Justice shall allow naturalization only to a person who satisfies the requirements after examining whether an applicant for naturalization satisfies the requirements for naturalization." The nationality determines the qualification of a citizen. Since a person who acquires the nationality becomes a sovereign of the State at the same time as a sovereign of the State, permission for naturalization constitutes an act of comprehensively establishing a legal status as a citizen by granting the nationality of the Republic of Korea to a foreigner. On the other hand, there is no provision that granting a foreigner a right to acquire Korean nationality in the relevant statutes, such as the Nationality Act. Considering the form and language of the provision on the basis of permission for naturalization, and the contents and characteristics of permission for naturalization, it is reasonable to deem that the Minister of Justice has discretion to grant permission for naturalization even if an applicant for naturalization satisfies the requirements

[3] In a case where the Minister of Justice rendered a disposition of non-permission of naturalization on the ground that an application for simplified naturalization by a foreigner who has resided in the Republic of Korea for more than three consecutive years with his/her visit employment status or temporary or supplementary nature of sojourn status cannot be deemed to meet the requirements for simplified naturalization, the case holding that the court below erred in the misapprehension of legal principles as to the legal nature of naturalization and failed to exhaust all deliberation, on the ground that the Minister of Justice did not determine whether non-permission of naturalization for the reason that the above status of sojourn was deviates from or abused by discretionary power, on the ground that the disposition of non-permission of naturalization for reasons of the contents and nature of the above status of sojourn, etc. is illegal, on the ground that the status of visit employment status or other status of sojourn can meet the requirements for simplified domestic naturalization, on the ground that the above disposition of non-permission of naturalization is illegal.

[1] Article 6 (1) of the Nationality Act, Article 5 of the Enforcement Rule of the Nationality Act / [2] Article 4 (1) and (2) of the Nationality Act / [3] Article 4 (1) and (2) of the Nationality Act, Article 6 (1) of the Nationality Act, Article 27 of the Administrative Litigation Act

[1] [3] Supreme Court Decision 2009Du19069 decided July 15, 2010 (Gong2010Ha, 1592)

Plaintiff

The Minister of Justice

Seoul High Court Decision 2009Nu27512 decided March 25, 2010

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

The grounds of appeal are examined.

1. On the first ground for appeal

Article 6(1) of the Nationality Act provides that the requirements for simplified naturalization shall be "a person who has a domicile in the Republic of Korea for at least three consecutive years (hereinafter "domestic residency requirements")," and Article 5 of the Enforcement Rule of the Nationality Act provides that "the period under Article 6 of the Act shall be the period during which a foreigner has lawfully entered the Republic of Korea and has been staying in the Republic of Korea after completing foreigner registration." Thus, in determining whether an applicant for naturalization satisfies the domestic residency requirements, the calculation of the period shall not vary depending on the foreigner's sojourn status under Article 12 of the Enforcement Decree of the Immigration Control Act.

In the same purport, the court below is just in holding that the plaintiff satisfied the domestic residency requirements of simplified naturalization including the period during which the plaintiff resided as "other (G-1) sojourn status" under Article 12 [Attachment Table 1] of the Enforcement Decree of the Immigration Control Act, and there is no error of law by misunderstanding the legal principles as to the domestic residency requirements

2. On the second ground for appeal

Whether an administrative act is a discretionary act shall be determined by considering both the system, form and language of the law that served as the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, the individual nature and type of the pertinent act itself (see Supreme Court Decision 98Du17593, Feb. 9, 200).

Article 4(1) of the Nationality Act provides, “A foreigner may acquire the nationality of the Republic of Korea by obtaining permission for naturalization from the Minister of Justice.” Article 4(2) provides, “The Minister of Justice shall, after examining whether a foreigner satisfies the requirements for naturalization, grant naturalization only to a person who meets such requirements.” However, nationality determines the qualification of a citizen. Since a person who acquires such nationality becomes a sovereign of the State at the same time as a sovereign of the State, the permission for naturalization constitutes an act of comprehensively establishing a legal status as a citizen by granting the nationality of the Republic of Korea to a foreigner. On the other hand, there is no provision that a foreigner granted the right to acquire the nationality of the Republic of

In light of the form and language of the provision on the basis of permission of naturalization, and the contents and characteristics of permission of naturalization, it is reasonable to view that the Minister of Justice has discretion on whether to allow naturalization even if an applicant for naturalization satisfies the naturalization requirements.

According to the facts acknowledged by the court below, the reason for the refusal of naturalization of this case is that the applicant had resided in Korea based on other status of temporary and supplementary nature (G-1), but the reason for the disposition is not only that "other (G-1) status does not meet the domestic residency requirement of simple naturalization" but also that "it is not the case where the applicant satisfies the domestic residency requirement of simple naturalization" as an exercise of the discretionary authority of the administrative agency as to permission of naturalization, considering the purport and nature of the above status of naturalization."

Therefore, in light of the above legal principles, the court below should have judged whether the defendant's rejection of the application for naturalization of this case on the ground of the content and nature of the above status of stay should have judged whether or not it deviates from or abused discretion. Nevertheless, the court below erred by misapprehending the legal principles on the legal nature of naturalization, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)