(영문) 서울행정법원 2008.5.14.선고 2007구합43501 판결

The following facts may be acknowledged as either in dispute between the parties or in combination with the whole purport of the pleadings in Gap 1, 4, 1 and 6:

A. On December 22, 1963, the Plaintiff was a woman born at the roadside of the People's Republic of China and acquired Chinese nationality, and completed the marriage report with A who is a national of the Republic of Korea on September 4, 2001, and entered the Republic of Korea on February 19, 2002.

B. On March 1, 2005, the Plaintiff filed an application for simplified naturalization pursuant to Article 6(2)1 of the Nationality Act with the Defendant, but the Defendant rendered a disposition denying the Plaintiff’s application for naturalization on November 13, 2007 on the ground that the Plaintiff failed to meet the naturalization requirements required under the Nationality Act (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff, on September 4, 2001, married with A who is a national of the Republic of Korea on February 19, 2002, and maintained a living living together and normal marital life in the same residence as A after entering the Republic of Korea, and thus satisfying the requirements for simplified naturalization under Article 6 (2) 1 of the Nationality Act. The plaintiff submitted a false lease contract with a document proving that he/she has the ability to maintain a livelihood under Article 3 (2) 4 of the Enforcement Rule of the Nationality Act at the time of applying for simplified naturalization. However, although the plaintiff submitted a false lease contract with a document proving that he/she has the ability to submit a lease contract, he/she is forced to force the employee of the Suwon Immigration and Immigration Ri Office to submit a lease contract while refusing to obtain a certificate of employment of A, and at the time, the plaintiff was able to live together with A who is a family member of the same family, and the plaintiff was delayed permission for naturalization at the Ministry of Justice and the civil service center, it cannot be concluded that the plaintiff failed to meet the requirements for simplified under Article 5 subparagraph 3 of the Nationality Act.

Therefore, although the defendant should naturally permit the plaintiff's application for permission of naturalization, the disposition of this case, which was reported differently, is unlawful.

(b) Relevant statutes;

As shown in the attached Form.

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the following facts: Gap evidence of 1 to 4, Gap evidence of 7, Eul evidence of 2, 3, Eul evidence of 4-1, 2, 5, and 6, witness of 00, and witness of Gap evidence of 00 and witness of Gap.

( 1 ) 원고는 1963 . 12 . 2 . 중화인민공화국 길림성 연길시에서 B과 C 사이에서 1남 3 녀 중 장녀로 태어나 XXXX고등학교를 졸업하고 유치원선생으로 일을 하던 중 1991 . 2 . D을 만나 아들 E을 낳고 혼인생활을 하다가 1999 . 3 . D과 이혼하였다 .

(2) On September 4, 2001, the Plaintiff reported a marriage with a national of the Republic of Korea, and entered the Republic of Korea on February 19, 2002, and thereafter, from around that time, the Plaintiff lives together with A in a house located at 00-Gu, Y-gu, Y-si, Y-si, Y-si, Y-si, Y-si, and from November 10, 2007, the Plaintiff lives together with F-si, Y-si, Y-si, Y-si, Y-si, Y-si, Y-si, Y-si, Y-si, Y-si, Y-si, Y-si, Y-si, 50, and 00 won (at present, E-do, the Plaintiff lives together with the above residence).

(3) A received 85,00 won per day as a daily worker (2,00,000 won to 2,500, 5000,000 won as a monthly salary) from March 2003 to June 2007, from 00, and thereafter served as Class 1,60,000, 70, and 00 won from 00 engineering.

(4) On March 2005, A sought permission for naturalization on behalf of the Plaintiff and received guidance on documents, etc. necessary for the application for permission for naturalization from his/her employees. The above employee recommended A to submit a certificate of work (a certificate No. 7, a copy of a real estate pre-sale contract, etc.) as a document proving that A has the ability to maintain his/her livelihood under Article 3 (2) 4 of the Enforcement Rule of the Nationality Act. Thus, the above employee recommended A to submit a shipment, such as a certificate of work and a copy of a real estate pre-sale contract equivalent to the above amount of 30,000,000 won or more, or a copy of a real estate pre-sale contract.

(5) In spite of the fact that A, at the time, was living on the leased housing of 2,50,00,000, monthly rent of 200,00,000, on the leased housing of Y-gu at the time, GY-si at the time, A falsely prepared a real estate lease agreement that leases the above housing of 20,000,000,000, and submitted it to the Suwon Immigration Office, along with an application for permission for naturalization under the name of the original owner.

(6) On December 13, 2005, an investigator belonging to the Suwon Immigration Office conducted a fact-finding survey on the plaintiff who applied for permission of naturalization, and prepared a report on fact-finding survey activities (Evidence B 2) on December 13, 2005, and the use in part is as follows:

A person shall be appointed.

(7) On the other hand, on October 18, 2007, the plaintiff sought the refugee status of the Ministry of Justice and the public service center, and made a confirmation report (No. 5) stating that the plaintiff made a disturbance, such as a disturbance against the public official in charge, on the grounds that the permission of naturalization is delayed due to the plaintiff's finding of the refugee status of the Ministry of Justice and the public service center, and the head of the immigration control department under his jurisdiction shall threaten the plaintiff to file a lawsuit without permission of naturalization by visiting the nationality refugee and the public service center, and make it impossible for the public official in charge to conduct a normal examination. On the other hand, it cannot be deemed that the behavior, which is a general requirement of permission of naturalization, is not good, such as disturbing the order of permission of naturalization.

(8) Without directly verifying whether the Plaintiff and A actually live together at their domicile, the Defendant determined that the Plaintiff failed to meet the requirements for general naturalization prescribed in Article 5 subparag. 3 and No. 4 of the Nationality Act (which shall be readily concluded, must have the ability to maintain their livelihood with their own assets and functions or dependent on their family members living together) and the requirements for simplified naturalization prescribed in Article 6(2) subparag. 1 of the Nationality Act (a person who has been married with his spouse as a national of the Republic of Korea for at least two consecutive years and has an domicile in the Republic of Korea) and did not meet the requirements for simplified naturalization prescribed in Article 6(2) subparag. 1 of the Nationality Act.

D. Determination

(1) Article 4 (2) of the Nationality Act 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 under Articles 5 through 7." Accordingly, if he/she specifically prepares the requirements for general naturalization and simplified naturalization until the applicant for naturalization satisfies the requirements, it is reasonable to deem that the defendant has a discretionary power to a certain extent in examining and determining naturalization requirements for an applicant for naturalization. However, even though the applicant for naturalization satisfies the requirements for naturalization, if the applicant for naturalization refuses the application for naturalization on the ground that he/she fails to meet the requirements for naturalization, it is unlawful since he/she deviates from and abused discretion.

(2) According to the above facts, the plaintiff is recognized to have married with A who is a national of the Republic of Korea and maintained the normal state of marriage for at least two years (Article 6(2)1 of the Nationality Act).

However, although the plaintiff submitted a false lease contract at the time of the application for permission for naturalization, and even though there was no special exchange with the family members of A, it is difficult to conclude that the plaintiff and A were not living together with the plaintiff in order to falsely take care of the living records of the plaintiff and A, but to submit "documents proving that they have the ability to maintain their livelihood" under Article 3 (2) Item 4 of the Enforcement Rule of the Nationality Act. In addition, it is difficult to see that the plaintiff and A were not living together with the plaintiff. Furthermore, according to the witness's testimony, according to A's witness's testimony, the fact that A got married to the plaintiff who is a ship of Korea has been married with A, it is difficult to see that the plaintiff had been living a normal marriage with the Korean civil country for more than two consecutive years.

(3) In addition, the facts that A, his spouse at the time of the Plaintiff’s application for permission for naturalization, had worked in a place of raising revenues of at least KRW 2,00,00 per month, and it seems that the Plaintiff and A are capable of maintaining their livelihood with the above number of admission. Thus, it is deemed that the Plaintiff satisfied the requirements of Article 5 subparag. 4 of the Nationality Act, “A is capable of maintaining their livelihood with their own assets or functions or dependent on their family living together.” (only a false lease contract was submitted, regardless of the time of the disposition in this case, the Plaintiff did not submit documents proving that he was capable of maintaining their livelihood under the above Enforcement Rule, and thus, the Defendant did not appear to have failed to meet the requirements of Article 5 subparag. 4 of the Nationality Act, and thus, it appears that the Plaintiff failed to meet the requirements of Article 5 subparag. 4 of the Nationality Act at the time of the disposition in this case, and therefore, it was difficult to determine whether the Plaintiff’s application for permission for naturalization was legitimate.

(4) Therefore, even though it is reasonable to deem that the Plaintiff satisfies all the naturalization requirements under the Nationality Act, the instant disposition that the Plaintiff reported differently is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition.

Judges

presiding judge Kim Yong-chul

Maximumela

Judges Song Jae-chan

Site of separate sheet

Related Acts and subordinate statutes

Nationality Act

Article 4 (Acquisition of Nationality by Naturalization)

(1) A foreigner who has no nationality of the Republic of Korea may acquire the nationality of the Republic of Korea by naturalization of the Minister of Justice.

(2) The Minister of Justice shall, after examining whether persons meet the requirements for naturalization under Articles 5 through 7 in cases of persons who have applied for naturalization, issue permission of naturalization only to the persons who meet such requirements.

(3) Persons who obtained permission of naturalization under paragraph (1) shall acquire the nationality of the Republic of Korea when the Minister of Justice grants such permission.

(4) Necessary matters for application procedures and examinations under paragraphs (1) and (2) shall be determined by the Presidential Decree.

Article 5 (Requirements for General Naturalization)

A foreigner shall meet the following requirements in order to obtain permission for naturalization except in cases prescribed in Articles 6 and 7:

1. That he/she has an address in the Republic of Korea for at least five consecutive years;

2. He shall be adult under the Civil Act of the Republic of Korea; and

3. Persons whose conduct is good;

4. A person shall be capable of maintaining his livelihood with his assets, functions or family members living together;

5. It shall have basic knowledge as a national of the Republic of Korea, such as Korean language ability and understanding of Korean custom (amended by Act No. 8892 of March 14, 2008).

Article 6 (Requirements for Simple Naturalization)

(1) A foreigner who falls under one of the following subparagraphs and has sustained domicile in the Republic of Korea for three consecutive years may obtain permission of naturalization even though he does not meet the requirements under subparagraph 1 of Article 5:

1. A person whose father or mother was a national of the Republic of Korea;

2. A person born in the Republic of Korea, and whose father or mother is born in the Republic of Korea;

3. A national of the Republic of Korea who had attained majority under the Civil Act of the Republic of Korea at the time of adoption;

(2) A foreigner whose spouse is a national of the Republic of Korea and falls under any of the following subparagraphs may obtain permission for naturalization, even if he/she does not meet the requirements under subparagraph 1 of Article 5

1. A person who has been married to his spouse for at least two consecutive years in the Republic of Korea;

2. A person for whom three years have passed since he/she married to his/her spouse, and who has a principal lawsuit in the Republic of Korea continuously for one year or longer in the state of marriage

3. A person who was unable to lead a normal mixed life without his/her spouse's death, disappearance, or any other cause attributable to himself/herself while failing to meet the period under subparagraph 1 or 2, even though he/she did not meet the period under subparagraph 1 or 2, and who satisfies the remaining period under subparagraph 1 or 2 and is deemed reasonable by the Minister of Justice.

4. A person who is taking care of, or is to take care of, an adult born by the marriage with the said spouse even though he failed to meet the requirements under subparagraph 1 or 2, and meets the period under subparagraph 1 or 2 and the Minister of Trade, Industry and Energy deems it reasonable (amended by Act No. 8892, Mar. 14, 2008).

Enforcement Decree of the Nationality Act

Article 3 (Application for Permission of naturalization)

A person who intends to obtain permission for naturalization under Article 4 (1) of the Act shall prepare a written permission for naturalization prescribed by Ordinance of the Ministry of Justice and submit it to the Minister of Justice.

Article 4 (Examination of Applications for Permission of naturalization)

(1) In examining the naturalization requirements for an applicant for permission of naturalization under Article 4 (2) of the Act, the Minister of Justice may request the head of a relevant agency to investigate the applicant's personal background, criminal history, and current situation during his/her stay, or seek an opinion on other necessary matters.

(2) With respect to an applicant for naturalization who falls under any subparagraph of Article 6 (2) of the Act, the Minister of Justice shall confirm whether he/she maintains a regular matrimonial relationship with his/her spouse by appropriate methods, such as submitting evidential documents prescribed by the Ordinance of the Ministry of Justice,

(3) The Minister of Justice shall conduct an inquiry and verification under paragraphs (1) and (2) with respect to whether only those who meet the requirements for naturalization (excluding the requirements under subparagraphs 3 and 5 of Article 5 of the Act) meet the requirements under subparagraphs 3 and 5 of Article 5 of the Act (hereinafter referred to as " Naturalization eligibility examination").

(4) Naturalization eligibility tests shall be conducted as a written test and interview: Provided, That a person prescribed by the Ordinance of the Ministry of Justice may be exempted from a written test.

(6) The Minister of Justice shall determine the person who has undergone the interview as an eligible person for naturalization, from among the persons subject to the naturalization eligibility examination, as the maximum points of 100 points in the written examination.

Article 5 (Permission for naturalization)

(1) The Minister of Justice shall permit naturalization only to a person determined as an eligible person as a result of a naturalization eligibility test.

(2) When the Minister of Justice permits naturalization, he/she shall immediately notify the person and make an official announcement in the Official Gazette.

Enforcement Rules of the Nationality Act

Article 3 (Form of Application for Permission of naturalization and Accompanying Documents)

(1) An application for permission of naturalization prescribed in Article 3 of the Decree shall be in attached Form 2.

(2) Documents to be attached to an application for permission of naturalization under paragraph (1) shall be as follows:

1. Documents proving that he/she is a foreigner;

4. A certificate of deposit balance not less than 30 million won, a copy of the real estate full-time charter copy of the real estate register equivalent to not less than 30 million won, a certificate of employment, a certificate of scheduled employment, and other documents recognized by the Minister of Justice as equivalent thereto, which certify that the person or his/her family living together with him/her has the ability to maintain his/her livelihood: Provided, That this shall not apply

5. Documents attesting the relationship, if any, to an applicant for concurrent acquisition;

6. Documents attesting the identity of the person who prepares the letter of recommendation and that of recommendation under paragraph (3) (excluding a person who falls under Articles 6 and 7 (1) 1 of the Act).

7. A certified copy of the father or mother's family register (limited to a person who falls under Article 6 (1) 1 of the Act);

8. Documents attesting that the principal and his father or mother have been born in the Republic of Korea (limited to persons falling under Article 6 (1) 2 of the Act).

9. A certified copy of the family register of both sides or mother entered in the fact of adoption (limited to the person who falls under Article 6 (1) 3 of the Act);

10. A certified copy of the family register of a Korean spouse (limited to persons falling under Article 6 (2) 1 or 2 of the Act);

11. A certified copy of the family register of a Korean spouse, a document attesting the fact that he/she was unable to lead a normal matrimonial life due to the death or disappearance of his/her spouse, or other causes attributable to him/her (limited to persons falling under Article 6 (2) 3 of the Act);

12. A certified copy of the family register of the Korean spouse, a birth certificate capable of attesting the existence of a minor born between the said spouse, and other documents corresponding thereto, and the documents attesting the fact that the said minor is either the person in question or the person in need of rearing (limited to the persons falling under Article 6 (2) 4 of the Act);

13. A certified copy of the family register of the father or mother (limited to a person who falls under Article 7 (1) 1 of the Act);

14. Documents proving the facts falling under any of the subparagraphs of Article 6 of the Decree (limited to the persons falling under Article 7 (1) 2 of the Act) (amended by Ordinance of the Ministry of Justice No. 623, Dec. 31, 2007);

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