20. Case on the General Prohibition of Multiple Nationalities

[26-1(B) KCCR 578, 2011Hun-Ma502, June 26, 2014]

In this case, the Constitutional Court held that the complainants’ claims with regard to Article 10 Section 1 and Article 15 Section 1 of the Nationality Act that prohibit multiple nationalities in principle and Article 10 Section 2 Item 4 of the Nationality Act that permits multiple nationalities in exception are not justiciable for the lack of self- relatedness and presentness, except the complainant Kim ○-Nam; and the Court rejected the complainant Kim ○-Nam’s claim with regard to Article 15 Section 1 of the Nationality Act for not infringing the freedom to move residence and right to pursue happiness under the principle against excessive restriction.

Introduction of Case

(1) The complainant, Korea Oversea Voters Association (hereinafter, KOVA), was established under the purpose to promote the political rights of Koreans living overseas on May 14, 2009. The complainant, Kim ○-Nam, was a 69 years old Korean at the time of the filing of this Constitutional Complaint, who also attained the right of permanent residence of the U.S. on June 6, 1984.

(2) The complainant Sul ○-Hyuk, Lee ○-Chang, Choi ○-Sun, and Choi ○-Jong were Koreans who were born on March 17, 1960, December 10, 1947, March 5, 1951, and July 19, 1948, in order, and lost their Korean nationalities by attaining the citizenship of the U.S.

(3) The constitutional complainant was filed on September 1, 2011 inthat the complainant Kim ○-Nam alleged the unconstitutionalityof Article 15 Section 1 of the Nationality Act, the complainant Sul○-Hyuk, Lee ○-Chang, Choi ○-Sun and Choi ○-Jong alleged the unconstitutionality of Article 10 Section 1, Section 2 Item 4 of the Nationality Act, and the KOVA alleged the unconstitutionality of the aforementioned provisions that prohibit multiple nationalities in principle.

Subject Matter of Review

The subject matter of review is whether Article 10 Section 1, Section 2 Item 4 of the Nationality Act (revised by Act No. 10275 on May 4,2010) and Article 15 Section 1 of the Nationality Act (revised byAct No. 8892 on March 14, 2008) infringe the basic rights of thecomplainants, and the substances of the provisions at issue areas follows:

Nationality Act (revised by Act No. 10275 on May 4, 2010)

Article 10 (Obligation of Persons who Retain Nationality of the Republic of Korea to Renounce Foreign Nationality)

(1) A foreigner who has attained the nationality of the Republic of Korea but retains a nationality of a foreign country shall renounce the nationality of the foreign country within one year after the attainment of the nationality of the Republic of Korea.

(2) Notwithstanding paragraph (1), any of the following persons shall either renounce the nationality of the foreign country or vow his/her intention not to exercise his/her foreign nationality in the Republic of Korea to the Minister of Justice, as prescribed by the Minister of Justice, within one year from the date he/she attained the nationality of the Republic of Korea:

4.A person who has obtained permission for the reinstatement of nationality under Article 9 by entering the Republic of Korea for the purpose of permanently residing therein after fully turning 65 years of age after having resided in a foreign country;

Nationality Act (revised by Act No. 8892 on March 14, 2008)

Article 15 (Loss of Nationality by Attainment of Foreign Nationality)

(1) A national of the Republic of Korea who has voluntarily attained the nationality of a foreign country shall lose the nationality of the Republic of Korea at the time of attainment of the foreign nationality.

Summary of Decision

A. Review on Justiciability

The claim of the KOVA does not satisfy the requirement of self- relatedness since the organization filed the constitutional complaint for remedies of its members.

With regard to the claim of the complainants Sul ○-Hyeok and others,who retain foreign nationalities, relating to Article 10 Section 1 of the Nationality Act, foreigners are not the bearers of the basic rights relating to political rights and freedom of entry to Korea. A person who attained the Korean nationality and lost the foreign nationality can still exercise the right to property, and the freedom to multiple nationalities is not protected by the right to pursue happiness under our Constitution. These considerations suggest that this claim lacks the bearers of basic rights and possibilities of restriction on basic rights.

The claim of the complainants, Sul ○-Hyeok and others, relating to Article 10 Section 2 Item 4 of the Nationality Act, lacks the self-relatedness and presentness in restricting the basic rights since the aforementioned complainants have not obtained or applied to the permission for the reinstatement of nationality by entering Korea for the purpose of permanently residing.

Therefore, the claims of the complainants are not justiciable, except the claim of the complainant Kim ○-Nam.

B. Review on Merits

Article 15 Section 1 of the Nationality Act, which is the subject of the claim of the complainant Kim ○-Nam, has legitimate legislative purpose and appropriate means since it stipulates that a Korean national who has voluntarily attained the nationality of a foreign country shall lose the nationality of Korea at the time of attainment of the foreign nationality to protect our Nation and People and to prevent the problems of

immigration control, evasion of duties as Korean nationals, and diplomaticprotection arising from multiple nationalities.

The policy on nationality should be determined comprehensively taking into account historical tradition and political, economic, social and cultural backgrounds. If the nationality of Korea is allowed to a person who has voluntarily attained the nationality of a foreign country, several problems may occur: Immigration control would become difficult, multiple nationalities would be abused to evade the obligatory military service and duty of tax payment, and diplomatic protection would overlap. The growing international awareness that the issue surrounding nationality is not exclusive domestic jurisdiction, is targeted at the prevention of a stateless person, which should be distinguished from this case. The Nationality Act allows multiple nationalities in exception and has provisions to reinstate Korean nationality through permission, which is a separate and simple procedure, for a foreigner who lost the Korean nationality. These circumstances suggest that Article 15 Section 1 of the Nationality Act does not violate the principle against the least restriction.

Article 15 Section 1 of the Nationality Act does not violate the principle of balance of interests, because the public interests to prevent the problems, including the evasion of obligatory military service, arising out of unlimited multiple nationalities, exceed the restricted private interest.

Therefore, Article 15 Section 1 of the Nationality Act does not infringe the freedom to move his/her residence and right to pursue happiness under the principle against the excessive restriction.