(영문) 서울행정법원 2007.11.14.선고 2007구합21204 판결

A. The plaintiff Kim 00 was born on December 29, 1962, and the plaintiff Lee 00 was born on August 16, 1966 from each of the People's Republic of China's Republic of China's ship of the Chinese nationality that was born on August 16, 196, and is the husband's death. The defendant is the head of the diplomatic mission delegated by the Minister of Justice with the authority to issue the visa.

B. On April 20, 2007, the Plaintiffs filed an application with the Defendant for visa issuance (H-2) for visiting employment (H-2) from April 20, 2007, following the invitation of GaoO of the Republic of Korea (Seoul Dobong-gu Seoul Metropolitan Government - X XX - Gu resident at the same level) that is the Plaintiff Kim 00’s external relationship.

C. On May 1, 2007, the Defendant refused to issue a visa to the Plaintiffs on the ground that the relationship between Plaintiff Kim 00 and GaO is unclear (hereinafter “instant refusal”).

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

2. Judgment on the Defendant’s main defense

A. Details of the defense of this case

For the following reasons, the defendant asserts that the lawsuit of this case is unlawful and thus dismissed.

(1) According to Articles 7 and 8 of the Immigration Control Act, Article 11 of the Enforcement Decree of the Immigration Control Act, and Article 9-2 of the Enforcement Rule of the Immigration Control Act, if a foreigner intends to enter the Republic of Korea, he/she shall obtain a visa issued by the head of the diplomatic mission abroad. The above provisions do not grant a foreigner the right to obtain a visa or any legal interest, but merely provide a single requirement imposed on a foreigner who intends to enter the Republic of Korea. Thus, the benefit from the issuance of

(2) The act related to the issuance of a visa is basically a form of exercising the sovereignty by which a foreigner can freely decide whether to enter the Republic of Korea, and the fact that the issuance of a visa is a sovereign issue of the relevant country is not only the nature of disposition or omission by a general administrative agency, but also is an internationally established practice. Therefore, the refusal of the issuance of a visa cannot be subject

B. Determination

(1) As to the first argument of the people, the administrative agency will not take action resulting from the filing of the petition against the citizens.

If a refusal to file an appeal constitutes an administrative disposition that is the subject of an appeal litigation, the filing of the appeal must be an exercise of public power or an equivalent administrative action, and the refusal must cause any change in the applicant’s legal relationship, and the citizen must have the right to file an appeal in accordance with the law or sound reasoning demanding the exercise of the action (see Supreme Court Decision 2001Du10936, Sept. 23, 2003, etc.).

Article 1 of the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter referred to as the "Overseas Koreans Act") provides that the purpose of Article 1 is to guarantee overseas Koreans the entry into and legal status in the Republic of Korea. Article 2 of the Act on Overseas Koreans is to guarantee overseas Koreans the entry into and departure from the Republic of Korea. Article 2 of the Act on Overseas Koreans means those who have held the nationality of the Republic of Korea under subparagraph 2 (including those who have emigrated overseas before the Government of the Republic of Korea is established) or as their lineal descendants, who have acquired the nationality of the Republic of Korea under subparagraph 2 and are prescribed by the Presidential Decree (hereinafter referred to as the "foreign nationality Korean"), and Article 4 of the Act provides that the Government shall provide necessary support to prevent overseas Koreans from being subject to unfair regulation and treatment within the Republic of Korea. Article 5 (1) of the Enforcement Decree of the Act on Overseas Koreans shall apply mutatis mutandis to the requirements for the acquisition and scope of activities of overseas Koreans, and Article 12 and Article 23 of the Enforcement Decree of the Immigration Control Act shall apply mutatis mutandis to the status of Foreigners Act:

[Attachment 1] The classification is classified as shown in attached Table 1. [Attachment 1] The requirements for sojourn status with respect to visit employment (H-2) introduced to expand opportunities for visiting China Koreans and Korean residents residing in the old Soviet area, etc., include ① a person aged 25 years or older who is a foreign nationality Korean under Article 2 subparagraph 2 of the Overseas Koreans Act, ② a relative by blood within the eighth degree or by marriage within the fourth degree who is a national of the Republic of Korea who has a domicile in the Republic of Korea, or a person who is invited by marriage within the fourth degree.

In full view of the legislative intent of the Overseas Koreans Act, status of a foreign nationality Korean, Article 5(1) of the Overseas Koreans Act provides for an application for status of stay of a foreign nationality Korean, the newly establishment purpose of visiting employment (H-2), sojourn status of visiting employment (H-2), sojourn status of visiting employment (H-2) in the Enforcement Decree of the Immigration Control Act, and one of the requirements provides that a foreign nationality Korean shall be a foreign nationality Korean under Article 2 subparag. 2 of the Overseas Koreans Act, it is reasonable to deem that the Overseas Koreans Act provides that a foreign nationality Korean shall be treated as a foreign nationality Korean differently from a foreigner merely, and thus grants a foreign nationality Korean with the right to apply for a visa for visiting employment to a foreign nationality Korean. Since there is a change in the legal relationship of the applicant depending on whether such application is refused, the benefit that a foreign nationality Korean enjoy due to the issuance of the visiting employment visa shall be considered as a legal interest, not a mere reflect interest.

Therefore, the defendant's refusal to issue a visa to the plaintiff's visiting employment (H-2) who is a foreign nationality Korean under Article 2 subparagraph 2 of the Overseas Koreans Act is "disposition subject to administrative litigation". Thus, the defendant's argument against this is not acceptable. (2) As the defendant's argument is about the second argument, the issue of visa to a foreigner cannot be subject to administrative litigation because the issue of visa to a foreigner is a country's sovereign matters, but as seen in the above (1) as seen in the above (1), a foreign nationality Korean must be treated differently from a mere foreigner, and therefore, the defendant's argument that the refusal of this case cannot be subject to administrative litigation solely on the ground that the plaintiffs have a foreign nationality.

3. Determination on the legitimacy of the refusal of this case

A. The plaintiffs' assertion (1) procedural illegality

The defendant rejected the plaintiffs' application by way of returning only a part of the documents submitted by the plaintiffs without documents. If the documents submitted by the plaintiffs are incomplete, it was not required to supplement them, but there was a serious procedural violation, such as not presenting the grounds and reasons for disposition and not informing the defendant of the methods and procedures of appeal. Thus, the rejection of this case is unlawful.

(2) substantive illegality

The government explicitly promised to implement a visit employment system to expand opportunities for free travel and employment only to foreign nationality Koreans who have a diplomatic relation in the Republic of Korea, and has maintained laws and regulations. The applicant's trust in trust in trust of the government's commitment and maintenance of the laws and regulations, and in accordance with the visiting employment system should be legally protected. In addition, the Plaintiffs prepared all documents proving that Plaintiff Kim 00 and Park 00 were in a foreign relationship in accordance with the purport of the visiting employment system and the procedures and methods prescribed by the Acts and subordinate statutes, and filed an application for the issuance of visiting employment visa with the Defendant. As such, the Defendant, as a matter of course, refused the instant refusal without any particular reason even though the Defendant issued the visiting employment visa to the Plaintiffs, was in violation of law

B. Relevant statutes

As shown in the attached Form.

C. Determination

(1) procedural illegality

According to Article 3 (2) 9 of the Administrative Procedures Act, the Administrative Procedures Act does not apply to foreigner's immigration affairs. The act of issuing the visiting employment visa of this case constitutes the foreigner's immigration affairs and thus, the Administrative Procedures Act does not apply. If the purport of the whole argument is added to the statement in subparagraph 1-4 of Article 1-2 of the Act, the defendant may recognize the fact that he applied for a visa issuance to the consul General of Gyeyang-gu on June 9, 2006, the transfer of the refusal of this case, after filing an application for a visa issuance with the defendant on September 13, 2006, on the ground that his identity is unknown. In light of the above points, the refusal of this case cannot be revoked because the procedural illegality alleged by the plaintiffs is a question. Accordingly, the plaintiffs' above assertion cannot be accepted.

(2) substantive illegality

According to the provisions of Article 12 and attached Table 1 of the Enforcement Decree of the Immigration Control Act, in order for a foreigner to obtain the status of stay for visiting employment (H-2) by overseas Koreans under Article 2 subparagraph 2 of the Overseas Koreans Act, he/she shall be a person of 25 years of age or older who is a foreign nationality Korean under Article 2 subparagraph 2 of the Overseas Koreans Act, a blood relative within the eighth degree of a national of the Republic of Korea who has an address in the Republic of Korea, or a relative by marriage within the fourth degree of a degree

Therefore, as to whether the relationship between the plaintiff Kim 00, who is invited by the plaintiff Kim 00, and the relationship between relatives or relatives, should, in principle, be proved by the official document, and if it is not possible to obtain the official document, it should be proved by other highly reliable evidence, such as family photographs, correspondence, and satisfaction. If it is exceptionally impossible to do so, the whole purport of the argument is added to the statement in the evidence No. 8-1 to No. 9-2, the fact that the deceased and the deceased are the father of the GOO, the fact that the deceased and the deceased B is the father of the GOO, but the statement in the evidence No. 1, No. 2, and No. 2 of the evidence No. 1, No. 16 is insufficient to recognize the fact that the plaintiff Kim 0 was the child of the deceased, and there is no evidence to acknowledge otherwise.

Therefore, it cannot be deemed that the plaintiffs met the requirements for sojourn status of visiting employment (H-2) under the Enforcement Decree of the Immigration Control Act, and therefore, it is reasonable for the plaintiffs to invoke the principle of protection of trust on the refusal of this case, and it cannot be deemed that the defendant deviatess from and abused discretionary authority. Therefore, the above argument by the plaintiffs cannot be accepted without further review of the remaining requirements.

4. Conclusion

Therefore, the plaintiffs' claims seeking the revocation of the refusal of this case are without merit, and they are dismissed. It is so decided as per Disposition.