Gist of Complaint
In December 1999, the victim who is a Chinese national of Korean descent married a Korean man who was a wholesaler of herbal medicine. After the report of their marriage was filed, the victim entered the Republic of Korea in mid 2000 and lived with the man in the country for about two months. However, she discovered that her husband was cohabitating with another woman in China. In an effort to get a divorce, the victim appointed an attorney-at-law and initiated divorce proceedings. During the process, she intended to move from 00 to 00 after paying a fine to the 00 Immigration Office (the office of competent jurisdiction) to redress her position as an illegal alien. However, the 00 Immigration Office deported her on grounds that she was an illegal alien, which is deemed unfair.
Determination and Judgment by the Commission
The respondent did not waive payment of a deposit, nor specify a reasonable and clear amount of the fine payable by the victim from a humanitarian perspective in consideration of the facts that the victim was in divorce proceedings and was apprehended while visiting the Daejeon Immigration Processing Center to extend her stay. Rather, the respondent offered only a vague indication that the amount of the fine would be at most KRW10 million. As a result, the victim failed to file for temporary suspension of detention and was deported. Ten days after her deportation, the court decided in her favor, ruling that " It is acknowledged that elopement by the victim's ex-husband brought their marriage to an end, and this falls under the grounds for divorce under Subparagraph 2, Article 840 of the Civil Act (when a person deserts his or her spouse maliciously) and Subparagraph 6, Article 840 of said Act (when there is material reason that renders maintenance of marriage difficult)."
If the victim had not been deported, she would have been entitled to apply for naturalization under the Nationality Act. Nonetheless, the respondent deported her, which constitutes excessive application of the law without due consideration of surrounding circumstances. The victim is prohibited from entering the Republic of Korea for three years. Based on its determination that this violates the victim's right to pursue happiness as guaranteed under Article 10 of the Constitution, the Commission recommended to the Minister of Justice in March 2005 that said regulation be lifted so that the victim may obtain Korean citizenship.
