[1] In a case where a final and conclusive decision in lieu of conciliation in a divorce lawsuit contains a description that specifies a responsible spouse, whether the existence of liability for the failure of marriage can be acknowledged by free conviction based on the evidence adopted by the court in an appeal litigation filed against a disposition, etc. by an administrative agency (affirmative)

[2] In a case where Party A, a citizen of the People's Republic of China, was an applicant for extension of the status of stay for marriage immigrants (F-6) while staying in the status of stay for marriage immigrants (F-6) after marriage with Party B who is a citizen of the Republic of Korea, and the head of the Immigration Office denied such application, the case affirming the judgment below holding that the above disposition is lawful on the ground that, in light of various circumstances, it is unclear that Party A's failure in the marital relationship is not a cause attributable to Party A because it is difficult to readily conclude that Party A is an ineligible person for normal marital life due to reasons not attributable to the principal,

[3] Whether the court may freely decide whether to accept evidence (affirmative with qualification)

[1] Articles 8(2) and 27 of the Administrative Litigation Act / [General Administrative Litigation Decision], Article 202 of the Civil Procedure Act / [2] Articles 8(2) and 27 of the Administrative Litigation Act / [2] Articles 202 of the Civil Procedure Act, Article 10 of the Civil Procedure Act, Article 12 [Attachment 1] and Article 28-4 of the Enforcement Decree of the Immigration Act / [3] Article 8(2) of the Administrative Litigation Act, Article 290 of the Civil Procedure Act

[3] Supreme Court Decision 2002Da36709, 36716 Decided September 24, 2002 Supreme Court Decision 2007Da69810 Decided October 9, 2008

Plaintiff (Attorney Choi Jong-young et al., Counsel for the plaintiff-appellant)

Head of Seoul Immigration Office

Seoul High Court Decision 2013Nu48196 decided April 2, 2014

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Although a written decision in lieu of a final and conclusive conciliation in a divorce lawsuit has the same effect as a final and conclusive judgment (Article 59(2) of the Family Litigation Act and Article 220 of the Civil Procedure Act), even if there are descriptions specifying the responsible spouse in the written decision, it cannot be deemed as the facts recognized in the final and conclusive judgment, and thus, the court in charge of the disposition, etc. of an administrative agency may recognize the existence of the liability for marriage failure by free conviction based on the evidence adopted in an appeal

According to the reasoning of the first instance judgment partially admitted by the lower court and the reasoning of the judgment, the lower court determined that the instant disposition is lawful on the grounds that, in light of the following: (a) in the case of divorce and consolation money claim filed by the Plaintiff against the Nonparty, “the Plaintiff and the Nonparty are divorced due to reasons attributable to the Nonparty; and (b) the Nonparty agreed to not receive consolation money included in the above conciliation between the Nonparty and the Nonparty; (c) the Plaintiff agreed to not receive consolation money; and (d) there was a family agreement that would not be paid consolation money included in the content of the conciliation even though the Nonparty was divorced due to reasons attributable to the Nonparty; and (e) the Nonparty reported the Plaintiff’s home withdrawal to the investigation agency; and (e) the Nonparty asserted and stated to the effect that the Plaintiff was also liable to the Plaintiff for the failure of a normal marital relationship with the Plaintiff in the course of divorce lawsuit filed by the Plaintiff and the investigation by the employee of the Defendant; and (e) it is difficult to conclude that the Plaintiff falls under a person who could not have a marital relationship due to reasons not attributable to the failure.

In light of the above legal principles and records, the above fact-finding and determination by the court below are just, and there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the validity of the final decision substituting

2. Article 290 of the Civil Procedure Act, which applies mutatis mutandis to the deliberation of an administrative litigation case pursuant to Article 8(2) of the Administrative Litigation Act, provides that "the court may choose not to investigate evidence if it deems it unnecessary to do so: Provided, That this shall not apply to the case where it is the sole evidence of the facts alleged by the party." Thus, the court may freely decide whether to grant evidence, unless it is the sole evidence of the facts alleged by the party (see, e.g., Supreme Court Decisions 2002Da36709, 36716, Sept. 24, 2002; 2007Da69810, Oct. 9, 2008).

According to the reasoning of the judgment below and the record, it can be known that the plaintiff submitted various evidences to prove the failure of a matrimonial relationship due to a cause not attributable to himself. Thus, the plaintiff's application for witness against the non-party does not constitute the only evidence to prove the plaintiff's above assertion, and it is not necessary to investigate it on the records. Thus, the court below did not err in accepting the application or in failing to exhaust all necessary

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)