[1] Requirements for establishment of an administrative disposition / The time of establishment of an administrative disposition and the standard for determining its establishment

[2] The case holding that in a case where the Commissioner of the Military Manpower Administration requested the Minister of Justice to prohibit entry into the immigration information system, which is an internal computer network, that "A shall not be subject to appeal against the prohibition of entry into the immigration control information system, where A, who had obtained the permission for overseas travel and actually evaded the duty of military service by acquiring the U.S. citizen's right after obtaining the permission for overseas travel for performance, and thus, the Commissioner of the Military Manpower Administration shall not engage in profit-making activities, such as employment and taking activities in the Republic of Korea, if it is impossible, and the Minister shall prohibit entry into the Republic of Korea

[3] Whether a “administrative rule” that provides a superior administrative agency with guidelines for business performance or standards for statutory interpretation and application to public officials under its jurisdiction or subordinate administrative agencies is externally binding (negative), and whether a disposition can be determined based on whether it conforms to administrative rules (negative) / Whether the same legal principle applies to individual and specific orders given by a superior administrative agency to public officials under its jurisdiction or subordinate administrative agencies (affirmative)

[4] Whether a disposition in violation of Article 24(1) of the Administrative Procedures Act concerning the method of administrative disposition is null and void (affirmative)

[5] Meaning of “matters concerning entry and departure of foreigners” under Article 3(2)9 of the Administrative Procedures Act and Article 2 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act, and in the case of “matters concerning entry and departure of foreigners”, whether the need to go through administrative procedures is naturally denied (negative)

[6] Whether the issuance of visas to overseas Koreans belongs to the discretionary action of an administrative agency (affirmative)

[7] Where an administrative agency grants a certain discretion to determine the requirements and effects of a disposition, but the administrative agency does not completely compare the public interest to be achieved by the disposition and the disadvantage suffered by the other party to the disposition, whether the relevant disposition constitutes an unlawful ground to revoke the relevant disposition due to deviation or abuse of discretion (affirmative)

[8] The contents of the principle of proportionality as the basic principles of the Constitution

[9] In a case where a disciplinary measure on the grounds of a disposition party’s breach of duty has considerably lost validity due to the excessive violation of duty, whether it constitutes a deviation or abuse of discretion (affirmative)

[10] In a case where the Commissioner of the Military Manpower Administration requested the Minister of Justice to prohibit entry on the grounds that "A, who had obtained the permission for overseas travel for public performance, was practically exempted from the duty of military service by acquiring the U.S. citizenship after obtaining the permission for overseas travel," and the Minister of Justice made a decision to prohibit entry to the head of overseas Koreans (F-4) and the head of overseas diplomatic and consular missions notified Gap's father of the non-permission of issuance of the visa without preparing a written disposition of refusal to issue the visa stating the grounds for the disposition, the case holding that the decision of refusal to issue the visa was erroneous in the misapprehension of legal principles of the judgment below that the decision of refusal to issue the visa was lawful, on the grounds that there was a defect in violation of Article 24 (1) of the Administrative Procedures Act in the disposition of refusal to issue the visa, and that the head of overseas consular and consular missions were bound by the decision of prohibition

[1] In general, where a disposition satisfies all the requirements of subject, content, procedure and form and is indicated externally, the existence of the disposition is recognized. The disposition is established at the time when an administrative agency is bound by a restraint, which is not freely revoked and withdrawn. The establishment of the disposition ought to be determined based on whether an administrative agency officially expresses its administrative intention in an official manner.

[2] The case holding that in a case where the Commissioner of the Military Manpower Administration requested that the Minister of Justice prohibit entry into the immigration information system, which is an internal computer network, on the ground that, in a case where: (a) Party A, who obtained permission for overseas travel and actually evaded the duty of military service by acquiring the right of citizens of the United States after obtaining such permission; (b) Party A’s departure from the Republic of Korea; (c) Party A’s departure from the Republic of Korea is prohibited; and (d) Party A entered the information into the immigration information system, which is an internal computer network; (b) Party A did not notify Party A of the information, the Minister of Justice determined that the “disposition” can not be deemed to be established on the ground that the Minister of Justice determined the above disposition pursuant to Article 11(1)3 and 4 of the Immigration Control Act, Article 14(1) and (2) of the Enforcement Decree of the Immigration Control Act, on the ground that the above decision was not an official expression of the intention of the Minister of Justice; and (c) Party A did not constitute a fair and administrative litigation.

[3] The “administrative rules” which a superior administrative agency provides for work process guidelines or the criteria for interpretation and application of statutes to public officials under its jurisdiction or subordinate administrative agencies are generally effective only within the administrative organization and have no external effect of externally binding on the people or the court. A disposition is not immediately unlawful solely on the ground that it violates administrative rules, but its legality is not guaranteed solely on the ground that it is in accordance with administrative rules. The legality of the disposition should be determined not based on whether it conforms to administrative rules, but on whether it conforms to the provisions of superior statutes and the legislative purpose.

The same applies to individual and specific instructions given by a superior administrative agency to a public official under its jurisdiction or a subordinate administrative agency. Generally, an instruction given by a superior administrative agency is effective only within an administrative organization, and does not externally bind citizens or the court. On the sole basis of the fact that a disposition is rendered by a disposition that violates a superior administrative agency’s order, the disposition is not immediately unlawful, but is not immediately unlawful, and its legality is not guaranteed merely because the disposition is in compliance with a superior administrative agency’s order. The legality of the disposition ought to be determined not by whether it complies with a superior administrative agency’s order, but by whether it conforms with the Constitution, laws and regulations binding externally, legislative purpose, and the general principles

[4] Article 24(1) of the Administrative Procedures Act provides, “When an administrative agency takes a disposition, it shall be done in writing, except as otherwise provided for in other Acts and subordinate statutes, and in the case of an electronic document, the consent of the parties, etc. shall be required: Provided, That where it is necessary to process it promptly or a matter is minor, it may be done orally or by other means.” This provision aims to ensure the clarity of the content of the disposition and to protect the rights and interests of the other party to the disposition by preventing disputes over the existence of the disposition, and thus, the disposition violating it is null

[5] In light of the legislative purpose of the Administrative Procedures Act, including Article 3(2)9 of the Administrative Procedures Act and Article 2 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act, aiming at securing fairness, transparency, and reliability in administration and protecting the rights and interests of the other party to disposition, “matters concerning entry and departure of foreigners” excluded from the application of the Administrative Procedures Act refers to matters that are either difficult or unnecessary to undergo administrative procedures due to the nature of the pertinent administrative action, or matters that undergo procedures equivalent to administrative procedures and are prescribed by the Enforcement Decree of the Administrative Procedures Act. The need to undergo administrative procedures is not naturally denied on the ground that “matters concerning entry and departure of foreigners” is

Inasmuch as a disposition of refusal to issue a visa is not a disposition that imposes an obligation on the parties or actively restricts their rights and interests, it is not subject to the “prior notice of a disposition” under Article 21(1) of the Administrative Procedures Act and Article 22(3) of the same Act. However, in light of the nature of the disposition of refusal to issue a visa, it is difficult to uniformly conclude that there is no need to prepare and deliver a written disposition under Article 24 of the Administrative Procedures Act or it is difficult to readily conclude that there is no provision on the preparation of a written disposition of refusal to issue a visa under the Immigration Control Act and subordinate statutes. As such, the disposition of refusal to issue a visa by a foreigner is not subject to the procedures prescribed in Article 24 of the Administrative Procedures Act

[6] The following conclusion may be derived in full view of Articles 7(1), 8(2) and (3), 10, 10-2, and 11(1)3 and 4 of the Immigration Control Act, Article 9-2 of the Enforcement Rule of the Immigration Control Act, Article 5(1) and (2) of the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter “overseas Koreans Act”), legislative history and purpose of the Act on the Immigration and Legal Status of Overseas Koreans, and the following conclusion may be derived. The issuance of the visa to overseas Koreans is within the discretion of an administrative agency, and the issuance of the visa does not require an unconditional visa to be issued on the ground that the overseas Koreans meet the requirements for the status of overseas sojourn as provided in [Attachment 1-2] of the Enforcement Decree of the Immigration Control Act in the event that the overseas Koreans applied for the issuance of the visa and that the administrative agency does not permit the issuance of the visa to overseas Koreans for a more unfavorable reason than the entry prohibition under each subparagraph of Article 11(1) of the Immigration Control Act or Article 5(2) of the Overseas Koreans Act.

[7] Even though the relevant administrative agency granted a certain discretion to determine the requirements and effects of the disposition, if the administrative agency did not completely compare the public interest to achieve the remaining disposition that was erroneous to have no discretion with the content and extent of the disadvantage suffered by the other party to the disposition, such disposition is a non-exercise of discretion and thus constitutes an unlawful ground to revoke the relevant disposition due to deviation or abuse of discretion.

[8] The principle of proportionality is the basic constitutional principle naturally derived from the principle of a constitutional state, and applies to all state actions. The means to achieve administrative objectives should be effective and appropriate for achieving the objectives, and at least infringement as possible, and should not be capable of infringing upon the purpose of introducing the said means.

[9] In the case of a disciplinary measure on the grounds of a person’s breach of duty, a certain degree of proportion should be proportional to the degree of the violation of duty and the determination of the disciplinary measure. In a case where the disciplinary measure is so excessive that it considerably lacks validity under the social norms compared to the violation of duty, it should be deemed unlawful as it constitutes deviation or abuse of discretionary power.

[10] In a case where the Commissioner of the Military Manpower Administration requested the Minister of Justice to prohibit entry on the grounds that "A, who was granted the permission for overseas travel for public performance, was practically exempted from the duty of military service by acquiring the U.S. citizenship after obtaining the permission for overseas travel," and the Minister of Justice requested the head of overseas Koreans (F-4) to issue the visa, and the head of overseas Koreans (F-4), and notified Gap's father of the refusal to issue the visa by telephone without preparing a written disposition of refusal to issue the visa stating the reason for the disposition, the case held that the judgment below erred by misapprehending the legal principles as to the refusal to issue the visa, on the ground that Gap's overseas Koreans (F-4) applied for the issuance of the visa, cannot be deemed to constitute "the case where Gap's overseas Koreans (F-4) with six days' overseas Koreans (F-4)," and thus, it cannot be deemed as "the case where it is necessary to promptly process the visa or it is minor" under the proviso of Article 24 (1) of the Administrative Procedures Act, but the decision to refuse to issue the visa should be applied only for three months prior to the discretionary authority.

[1] Article 1 of the Administrative Litigation Act / [2] Article 1 of the Administrative Litigation Act / [1] Article 2 (1) 1 of the Administrative Litigation Act, Article 1 (1) 3 and 4 of the Immigration Control Act, Article 14 (1) and (2) of the Enforcement Decree of the Immigration Control Act / [3] Article 1 of the Administrative Litigation Act / [4] Article 24 (1) 9 and Article 24 of the Administrative Procedures Act, Article 2 subparagraph 2 of the Enforcement Decree of the Administrative Procedures Act / [6] Articles 7 (1), 8 (2) and (3), 10, Article 10-2, Article 11 (2) 3 and 4 of the Immigration Control Act, Article 9-2 of the Enforcement Decree of the Immigration Control Act, Article 5 (1) of the Immigration Control Act, Article 7 (2) of the Administrative Procedures Act / [2) of the Administrative Litigation Act, Article 7 (1) of the Administrative Litigation Act / [3] Article 7 (2) of the Administrative Litigation Act

[1] Supreme Court en banc Decision 2016Du35120 Decided July 11, 2017 (Gong2017Ha, 1637) / [3] Supreme Court Decision 2009Du7967 Decided December 24, 2009 (Gong2010Sang, 262) Supreme Court Decision 201Du10584 Decided September 12, 2013 / [4] Supreme Court Decision 201Do1109 Decided November 10, 201 (Gong201Ha, 2614) / [5] Supreme Court Decision 2003Du6749 Decided November 28, 203 [209Du37969 Decided March 13, 2016] Supreme Court Decision 209Du37989 Decided September 29, 2016

Plaintiff (English name omitted, Korean name omitted) (Law Firm Sejong, et al., Counsel for the plaintiff-appellant)

Major consul General of Sgegegeles (Government Law Firm, Attorneys Yellow-chul et al., Counsel for the plaintiff-appellant-appellant)

Seoul High Court Decision 2016Nu68825 decided February 23, 2017

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case overview and key issue

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) The plaintiff was born in the Republic of Korea on December 15, 1976, but was born in the Republic of Korea on January 18, 2002, and lost the nationality of the Republic of Korea by acquiring the citizenship of the United States on January 18, 202 (overseas Koreans are divided into overseas Koreans and overseas Koreans, and the plaintiff constitutes overseas Koreans and overseas Koreans). The defendant is the head of overseas diplomatic missions

(2) On January 28, 2002, the Commissioner of the Military Manpower Administration requested the Minister of Justice on January 28, 2002 that “the plaintiff was exempted from the duty of military service by acquiring the U.S. citizen’s right after obtaining the permission for overseas travel from the Commissioner of the Military Manpower Administration for performance, and the plaintiff entered the Republic of Korea as an overseas Korean and engaged in entertainment activities, such as broadcasting activities, records-out and performances, etc., the morale of the soldiers of the Korean armed forces would be reduced, the youth would be light of the duty of military service, and the acquisition of foreign nationality would be abused as a means of evading military service.” Therefore, if the plaintiff wants to return to the Republic of Korea as an overseas Korean qualification, the plaintiff is prohibited from engaging in

(3) On February 1, 2002, the Minister of Justice decided to prohibit the Plaintiff from entering the Republic of Korea pursuant to Article 11(1)3, 4, and 8 of the Immigration Control Act, and entered the information into the “Immigration Information System”, an internal computer network, but did not notify the Plaintiff thereof (hereinafter “instant decision to prohibit entry”).

(4) On August 27, 2015, the Plaintiff filed an application with the Defendant for the issuance of visa for overseas Koreans (F-4). On September 2, 2015, the Defendant notified the Nonparty of the Plaintiff’s father that “the Plaintiff constitutes a person subject to immigration control and thus, the issuance of visa was denied.” The detailed reasons are as follows with the Ministry of Justice. The Plaintiff returned the passport and the application for visa issuance at that time, and did not make a written disposition of refusal to issue the visa stating the reasons for the disposition (hereinafter “instant disposition of refusal to issue the visa”).

(5) The grounds for the disposition rejecting the issuance of visas, which the Defendant stated in the instant lawsuit, were that the decision was made to prohibit the entry of the Plaintiff in 2002.

B. The lower judgment

A summary of the judgment below is as follows. The decision of prohibition of entry in this case constitutes a disposition of prohibition of entry in this case and there is no significant and obvious defect, the plaintiff should have appealed by the means of filing a revocation lawsuit against the decision of prohibition of entry in this case within the period of filing a lawsuit. Since the plaintiff's non-appeal has not been asserted, the defendant is bound by the decision of prohibition of entry in this case and accordingly, the decision of refusal to issue the visa is legitimate. In a revocation lawsuit against the decision of rejection of the issuance of the visa in this case

C. Issues

The key issues of the instant case are whether the instant decision of prohibition of entry constitutes a disposition of prohibition of entry, and whether the Defendant’s refusal to issue a visa is lawful solely on the ground that the instant decision of prohibition of entry was rendered before 13 years and seven months without considering all other circumstances.

2. Legal nature and effect of the decision to prohibit entry (ground of appeal Nos. 2, 4, and 5)

A. Whether the decision to prohibit entry constitutes a disposition

(1) The term “disposition, etc.”, which is the subject of an appeal litigation, refers to the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be the subject of an appeal litigation cannot be determined abstractly and generally. In a specific case, the determination should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and disadvantage suffered by interested parties such as the other party, etc., the principle of administration by the rule of law, the administrative agency, or the attitude of interested parties, etc. (see, e.g., Supreme Court en banc Decision 2008Du

In general, the existence of a disposition is recognized where a disposition satisfies all the requirements of the subject, content, procedure, and form and is indicated externally. A disposition is established at the time when an administrative agency is detained and cannot freely revoke or withdraw a disposition, and whether such disposition is established ought to be determined based on whether an administrative agency officially expresses its administrative intent (see, e.g., Supreme Court Decision 2016Du35120, Jul. 11, 2017).

(2) Article 11(1) of the Immigration Control Act provides that the Minister of Justice may prohibit entry of a foreigner who falls under any of the following grounds, such as “a person deemed likely to engage in any conduct detrimental to the interest or public safety of the Republic of Korea” (Article 11(3) and “a person deemed likely to engage in any conduct detrimental to the economic order or social order or good morals” (Article 11(4)). Article 13 of the Enforcement Decree of the Immigration Control Act provides that a person whose entry is prohibited by the Minister of Justice pursuant to Article 11 of the Act shall, without delay, manage data in accordance with the procedures for informatization service.

Article 14 of the Enforcement Decree of the Immigration Control Act provides for the request for prohibition of entry. The head of a central administrative agency and the head of a related agency determined by the Minister of Justice may request the Minister of Justice to prohibit or refuse entry of foreigners who are deemed to fall under the grounds for prohibition of entry under Article 11(1) of the Act in relation to their competent duties (Article 2(2), 2-2(2), and 2-3(3) and (4) of the Act on the Procedure for prohibition of entry against nationals (Article 2(2)). As such, the head of an agency requesting prohibition of entry shall send a written request stating the grounds for request for prohibition of entry to the public, accompanied by documents prescribed by Ordinance of the Ministry of Justice (Article 2(2)), and the Minister of Justice may, if deemed necessary for the examination of the request, request the head of the agency requesting the prohibition of entry to submit relevant documents (Article 2-3(3)), and if the Minister of Justice decides not to prohibit entry as a result of the examination, he/she shall clearly notify the head of the

The decision to prohibit entry of this case can be deemed to have been rendered by the Minister of Justice pursuant to Article 11(1)3 and 4 of the Immigration Control Act and Article 14(1) and (2) of the Enforcement Decree of the Immigration Control Act.

However, as seen above (1), since “disposition” is not established prior to the administrative agency’s external expression of administrative intention and the administrative agency’s free revocation and withdrawal is not subject to detention, the Minister of Justice cannot deem that the “disposition” is established solely on the ground that the Minister of Justice rendered the instant decision to prohibit entry pursuant to the aforementioned statutes. The instant decision to prohibit entry does not indicate the intention of the Minister of Justice in an official manner, but is merely an entry and management of the relevant information into the “Immigration Information System,” which is an internal computer network, and thus, does not constitute “disposition” that can be subject to appeal litigation.

(3) Nevertheless, the lower court determined that the instant decision constituted a disposition of prohibition of entry, and thus, was fair and uncertain. In so determining, the lower court erred by misapprehending the legal doctrine regarding the disposition, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

In a case where the Supreme Court Decision 2012Du5992 Decided February 28, 2013 cited by the lower court notified the Minister of Justice of the decision to prohibit entry of foreigners who already entered the Republic of Korea, the case holding that the decision to prohibit entry was not only externally indicated in an official manner but also constitutes a disposition since the substantial substance of the decision constitutes an order of deportation. Thus, it is inappropriate to invoke the instant case

(b) Effects on the disposition rejecting the issuance of visas;

(1) Articles 7(1) and 8(3) of the Immigration Control Act provide that when a foreigner enters the Republic of Korea, he/she shall obtain a valid passport and a visa issued by the Minister of Justice, and the standards and procedures for the issuance of a visa shall be prescribed by Ordinance of the Ministry of Justice. According to delegation, Article 9-2 of the Enforcement Rule of the Immigration Control Act provides that the Minister of Justice shall review and confirm whether the foreigner who applied for a visa holds a valid passport (Article 11(1)1), “whether the foreigner who applied for a visa is not subject to the prohibition of entry under Article 11 of the Act (Article 11(2)2 of the Act), and whether the foreigner falls under the status of stay under the attached Table (Article 3).

(2) The “administrative rules” that a superior administrative agency set the guidelines for work process or the standards for statutory interpretation and application to a public official under its jurisdiction or a subordinate administrative agency are generally effective only within the administrative organization and have no external binding effect on the public or the court. A disposition is not immediately unlawful solely on the ground that it violates administrative rules, but is not immediately unlawful solely on such circumstance (see Supreme Court Decision 2009Du7967, Dec. 24, 2009). The legality of the disposition is not guaranteed solely on the ground that it is in accordance with the administrative rules. The legality of the disposition shall not be determined based on whether it conforms to the provisions of the superior law and the legislative purpose (see Supreme Court Decision 201Du10584, Sept. 12, 2013).

The same applies to individual and specific instructions given by a superior administrative agency to a public official under its jurisdiction or a subordinate administrative agency. Generally, an instruction given by a superior administrative agency is effective only within an administrative organization and does not externally bind citizens or the court. On the sole basis of the fact that a disposition by a disposition-taking authority externally violates a superior administrative agency’s order, such disposition is not immediately unlawful, but is not immediately unlawful, and its legality is not guaranteed merely because the disposition is in compliance with a superior administrative agency’s order. Whether a disposition is lawful ought to be determined based on whether it conforms with the Constitution and laws, the provisions of statutes externally binding, the legislative purpose, and the general principles of law, such as the principle of proportionality and equality.

(3) Although the instant decision to prohibit entry does not constitute a “disposition” subject to an appeal litigation as seen in the foregoing A, it is characterized by the administrative agency’s internal direction as to visa issuance or entry permission. That is, the head of an overseas diplomatic mission or an immigration control official who conducts entry inspections on foreigners at an overseas diplomatic establishment or entry and departure port to which the Minister of Justice has delegated the authority to issue visas (hereinafter “head of an overseas diplomatic establishment, etc.”) may be deemed to have given instructions to the effect that “the Plaintiff constitutes a person subject to entry prohibition as prescribed by each subparagraph of Article 11(1) of the Immigration Control Act, and thus, the Plaintiff would not

However, the legitimacy of the instant refusal to issue the instant visa is not guaranteed merely because the said refusal to issue the visa is based on the direction of the Minister of Justice with respect to the heads of diplomatic missions abroad. The legitimacy ought to be determined based on whether the instant refusal to issue the visa conforms to the Constitution and laws, the statutes externally binding, the legislative purpose, the principle of proportionality

Nevertheless, the lower court determined that the Defendant’s instant decision to prohibit entry was lawful without further examining the fact that the Defendant was bound by the instant decision to refuse the issuance of visas. In so determining, the lower court erred by misapprehending the legal doctrine regarding the internal direction of an administrative agency, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Whether the disposition of refusal to issue a visa is unlawful (ground of appeal Nos. 3, 6, and 7)

(a) Standing to sue;

Whether a standing to sue exists in a lawsuit seeking revocation of an administrative disposition is not determined depending on whether it is the other party to the disposition, but on whether there is a legal interest to seek revocation thereof. Here, legal interest refers to a case where there is a direct and specific interest protected by the law based on the disposition, and it does not include indirect or factual or economic interest (see, e.g., Supreme Court Decision 9Du8565, Sept. 28, 2001).

Since the Plaintiff was born in the Republic of Korea and resided there for a long time in the Republic of Korea, it may be deemed that there has already been substantial relations with the Republic of Korea or that there has been legal interests in the Republic of Korea. Furthermore, the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter “Overseas Koreans Act”) is particularly enacted and implemented with a view to guaranteeing overseas Koreans’ entry into and departure from the Republic of Korea and legal status in the Republic of Korea. Therefore, the Plaintiff’s legal interest in seeking revocation of the disposition of refusal to issue the instant visa is recognized, and the Plaintiff’s legal interest in seeking

B. Violation of the Administrative Procedures Act

Article 24(1) of the Administrative Procedures Act provides, “When an administrative agency takes a disposition, it shall be done in writing, except as otherwise provided for in other Acts and subordinate statutes, and in the case of an electronic document, it shall be subject to the consent of the parties, etc.: Provided, That where it is necessary to process the disposition promptly or it is minor, it may be done orally or by any other means.” This provision aims at ensuring the clarity of the content of the disposition and preventing disputes over the existence of the disposition, thereby protecting the rights and interests of the other party to the disposition. Thus, the disposition violating this provision is null and void due to serious and obvious defects (see, e.g., Supreme Court Decision 201Do1109, Nov. 10

Article 3(2)9 of the Administrative Procedures Act and Article 2 subparag. 2 of the Enforcement Decree of the Administrative Procedures Act, in light of the legislative purpose of the Administrative Procedures Act aimed at securing fairness, transparency, and reliability in administration and protecting the rights and interests of the other party to disposition, “matters concerning entry and departure of foreigners” excluded from the application of the Administrative Procedures Act shall be deemed to refer only to matters deemed difficult or unnecessary to undergo administrative procedures due to the nature of the pertinent administrative action, or matters that undergo procedures equivalent to administrative procedures and prescribed by the Enforcement Decree of the Administrative Procedures Act, which are matters prescribed by the Administrative Procedures Act (see, e.g., Supreme Court Decision 2016Du3339, Mar. 13, 2018). The “matters concerning entry and departure of foreigners” cannot be readily denied as a matter of course

Since a disposition of refusal to issue a visa is not a disposition that imposes an obligation on the parties or actively restricts their rights and interests, it is not subject to the “prior notice of a disposition” under Article 21(1) of the Administrative Procedures Act and “an opportunity to present opinions” under Article 22(3) of the same Act (see Supreme Court Decision 2003Du674, Nov. 28, 2003). However, in light of its nature, it is difficult to readily conclude that a disposition of refusal to issue a visa is unnecessary or difficult to prepare and deliver a written disposition under Article 24 of the Administrative Procedures Act. In fact, in practice, the head of a diplomatic mission abroad, unlike the defendant, prepares and issues a written disposition of refusal to issue a visa or allow an applicant to verify the outcome of the disposition by accessing the Internet homepage. Moreover, since there is no separate provision on the preparation of a disposition of refusal to issue a visa under the Immigration Control Act and subordinate statutes, it cannot be substituted by “administrative procedures” without complying with the administrative procedures prescribed in Article 24 of the same Act.

As seen above 1. A. (4) The Defendant notified the Plaintiff’s father of the result of the disposition by telephone on September 2, 2015 and returned the application for the issuance of a passport and the application for the issuance of a visa at that time, and did not prepare a disposition of refusal to issue a visa stating the grounds for the disposition. As to the Plaintiff’s overseas Koreans (F-4)’s application for the issuance of a visa, it cannot be deemed that the Defendant’s application for the issuance of a visa does not constitute “a case where it is necessary to process promptly or minor matters” as provided by the proviso of Article 24(1) of the Administrative Procedures Act, except for the case where the Defendant’s application for the issuance of a visa for six days’ overseas Koreans (F-

Nevertheless, the lower court determined that the application of the Administrative Procedures Act was excluded because the rejection disposition on the application for the issuance of a visa by a foreigner constitutes a disposition deemed difficult or unnecessary due to its nature. In so determining, the lower court erred by misapprehending the legal doctrine on the exclusion from the application of the Administrative Procedures Act, thereby adversely affecting the conclusion of the judgment

(c) Discretionary and non-exercise of discretionary power;

(1) The issue of whether the issuance of visa to overseas Koreans is discretionary action is concerned. To determine this, it is necessary to examine the provisions on the issuance of visa under the Immigration Control Act and the provisions on the grant of status of overseas Koreans to sojourn as overseas Korean under the Overseas Koreans Act.

The Immigration Control Act has detailed provisions regarding the issuance of visas as follows. Although the authority to issue visas is vested in the Minister of Justice (Article 7(1)), the Minister of Justice may delegate his/her authority to issue visas to the heads of diplomatic missions abroad, as prescribed by Presidential Decree (Article 8(2)), and the standards and procedures for the issuance of visas shall be prescribed by Ordinance of the Ministry of Justice (Article 8(3)).

In order for foreigners to enter the Republic of Korea, they shall have the status of stay, namely, general status of stay or permanent status (Article 10), and the status of general stay is divided into short-term status of stay and long-term status of stay. The types of such status of stay, persons falling under such status of stay, or the scope of activities under such status of stay shall be determined by Presidential Decree in consideration of the purpose of sojourn, whether

Article 11(1) of the Immigration Control Act provides that the Minister of Justice may prohibit entry of foreigners (including foreigners deemed likely to engage in any conduct detrimental to the interest or public safety of the Republic of Korea (subparagraph 3), persons deemed highly likely to engage in any conduct detrimental to the economic or social order of the Republic of Korea (including persons deemed likely to engage in any conduct detrimental to the economic or social order of the Republic of Korea) and persons deemed likely to engage in any conduct detrimental to the good morals (subparagraph 4), and also prohibit entry of “a person deemed inappropriate by the Minister of Justice as a person corresponding thereto.” Article 9-2 of the Enforcement Rule of the Immigration Control Act provides that where the Minister of Justice approves the issuance of a visa, etc. or the head of an overseas diplomatic or consular mission issues a visa, he/she shall examine and confirm whether the foreigner who applied for a visa satisfies the following requirements, and that subparagraph 2 provides that “whether the foreigner who applied for the visa is not subject to the prohibition or refusal of entry as prescribed in Article 1

Article 5 of the Overseas Koreans Act provides that a person of a foreign nationality who intends to engage in activities in the Republic of Korea may be granted status of sojourn as overseas Korean upon request from the Minister of Justice under paragraph (1). Paragraph (2) of this Article provides for exceptional reasons. On September 2, 1999, at the time of the enactment of the Overseas Koreans Act, the Minister of Justice changed the status of sojourn into the Republic of Korea into several occasions. The reason for not granting status of sojourn to a person of a foreign nationality who applied for status of sojourn as overseas Korean would not be granting status of sojourn if the person might be detrimental to the security and maintenance of order, public welfare, diplomatic relations, or other interests of the Republic of Korea. The reason for not granting status of sojourn as overseas Korean on December 29, 2005 (the main sentence of paragraph (2)), including “when a male of the Republic of Korea acquired a foreign nationality for the purpose of evading military service and became a foreigner due to the loss of nationality of the Republic of Korea” (the proviso of paragraph (2) of this Article), and the provision allowing the person to be granted status of sojourn as overseas Korean in the second proviso of this case.

In full view of the above provisions and regulations of the Immigration Control Act, the relevant provisions and systems of the Overseas Koreans Act, and the legislative history and purpose thereof, the following conclusion can be derived. The issuance of visas to overseas Koreans belongs to the discretionary act of the administrative agency. In the event an overseas Korean applies for the issuance of a visa, it is not necessary to issue an unconditional visa on the ground that the overseas Korean meets the requirements for status of overseas sojourn as provided in attached Table 1-2 of the Enforcement Decree of the Immigration Control Act. There is a reason for the prohibition of entry as provided in each subparagraph of Article 11(1) of the Immigration Control Act or the reason for the exclusion of the grant of status of overseas Korean sojourn as provided in Article 5(2) of the Overseas Koreans Act (in this case, “the case where a male of the Republic of Korea acquires a foreign nationality to evade military service and becomes a foreigner because he loses the nationality of the Republic of Korea”) and if the public interest to achieve by not allowing his domestic stay is greater than the disadvantage that the administrative agency would result therefrom, the issuance of a visa

In a case where an administrative agency grants a certain discretion to determine the requirements and effects of a disposition, but an administrative agency took a disposition without balancinging the public interest to achieve the remaining disposition that was erroneous to have no discretion and the content and degree of the disadvantage suffered by the other party to the disposition, this is a non-exercise of discretionary power and thereby constitutes an illegal cause to revoke the relevant disposition due to a deviation or abuse of discretionary power (see, e.g., Supreme Court Decisions 2014Du45956, Aug. 29, 2016; 2014Du10691, Aug. 29, 2017).

The proportionality doctrine is the basic constitutional principle naturally derived from the principle of a constitutional state, and is applicable to all state actions (see, e.g., Constitutional Court en banc Order 92Hun-Ga8, Dec. 24, 1992). The means to achieve administrative objectives must be effective and appropriate for achieving the objectives, and at least infringement as possible, and at the same time, shall not be capable of infringing the public interest intended for the introduction of the said means (see, e.g., Supreme Court Decision 96Nu1096, Sept. 26, 1997).

(2) The Defendant issued the instant disposition rejecting the issuance of the instant visa solely on the ground that the Defendant did not exercise at all the discretion given to himself and only 13 years and seven months prior to the instant decision to prohibit entry. However, considering the following circumstances, the Defendant should have lawfully exercised the discretion given by the relevant laws and regulations.

The grounds for prohibition of entry under each subparagraph of Article 11(1) of the Immigration Control Act are diverse, and there are cases where it is difficult to predict when the grounds for prohibition of entry cease to exist. When the grounds for prohibition of entry cease to exist, the head of the requesting agency shall, without delay, request the Minister of Justice to revoke the prohibition of entry (Article 14(3) of the Enforcement Decree of the Immigration Control Act), and the Minister of Justice, who is the person having the authority to decide the

A person who discovered or released the grounds for entry into the Republic of Korea prescribed in each subparagraph of Article 11(1) of the Immigration Control Act, or a person who was sentenced to imprisonment without prison labor or any heavier punishment and released, etc. (Article 46(1)3 and 13 of the Immigration Control Act). A person for whom five years have not yet passed after departure from the Republic of Korea upon receipt of a deportation order may be prohibited from entering the Republic of Korea (Article 11(1)6 of the Immigration Control Act). As such, the Immigration Control Act only prescribes the restriction on entry into the Republic of Korea in principle, even in cases where the grounds for entry into the Republic of Korea were discovered or occurred after the entry into the Republic of Korea, and a foreigner was sentenced to imprisonment without prison labor or any heavier punishment

Articles 12(1), 12(2), and 15(1) of the former Nationality Act (amended by Act No. 10275, May 4, 2010) opened the possibility that a male may be exempted from military service as a national of the Republic of Korea due to the loss of nationality of the Republic of Korea. According to Article 5(2) of the Overseas Koreans Act, which was in force at the time of the instant disposition to issue visas, “where a male becomes a foreigner due to the loss of nationality of the Republic of Korea with a view to evading military service by acquiring a foreign nationality for the purpose of evading military service and the loss of nationality of the Republic of Korea,” the said male became 38 years of age, barring any special circumstance falling under subparagraph 3 (see the foregoing subparagraph (1)).

In the case of a disciplinary measure on the grounds of the breach of duty by the party against whom the disposition was imposed, a certain degree of proportion should be proportional to the degree of the violation of duty and the determination of sanctions. In a case where the disciplinary measure is excessive compared to the violation of duty, and thus considerably lacks validity under the generally accepted social norms, it should be deemed unlawful (see Supreme Court Decision 2006Du19297, Jul. 19, 2007, etc.). The decision to prohibit entry of this case is a disciplinary measure taken upon the request of the Commissioner of the Military Manpower Administration on the grounds that the Plaintiff acquired the U.S. citizenship, thereby escaping from military service as a national of the Republic of Korea. The decision to prohibit entry of this case, which was taken in 13 years and 7 months thereafter, requires determination as to

The Overseas Koreans Act was enacted to relieve restrictions on the entry and departure of the Republic of Korea of overseas Koreans so that the relationship with the Republic of Korea is not severed even after the overseas Koreans acquired and established the nationality of the country in which they reside. In light of the fact that the Overseas Koreans Act takes an attitude of open and tolerance for the entry and departure of the Republic of Korea of overseas Koreans in the Act on Overseas Koreans, taking measures to prohibit overseas Koreans from entering the Republic of Korea without setting the deadline should be careful, unless there are any grounds in the Act.

(3) Nevertheless, the lower court determined that the Defendant’s instant decision to prohibit entry was lawful without further examining whether the Defendant was bound by the instant decision to refuse the issuance of visas. In so doing, the lower court erred by misapprehending the legal doctrine on deviation and abuse of discretionary power, thereby adversely affecting the conclusion of the judgment. The allegation contained in

4. Conclusion

The judgment of the court below is reversed without examining the remaining grounds of appeal by the plaintiff, 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

Justices Lee Dong-won (Presiding Justice)