Nationality ActCase

(12-2 KCCR 167, 97Hun-Ka12, August 31, 2000)

Contents of the Decision

1. When a statutory provision on constitutional review upon requestis revised during the review, it loses its character as the precon- dition of the underlying trial.

2. Whether the former Nationality Act (enacted by Act No. 16 onDecember 20, 1948 and prior to being wholly amended by ActNo. 5431 on December 13, 1997) in which nationality by heredityfollows father's nationality (the Old Law, hereinafter) violates theconstitutional principle of equality.

3.A decision that finds nonconforming to the Constitution and givesonly temporary effects to Article 7(1) of Supplementary Provisions('Supplementary Provision', hereinafter) of the new NationalityAct (revised by Act No. 5431 through major revision, December13, 1997; the New Law, hereinafter), which are transitional clausesthat extended the benefit of the New Law applicable to thoseborne by a foreigner-father and therefore formerly ineligible for Korean nationality under the Old Law only to those born within10 years before the effective date of the New Law.

Summary of the Decision

1. The Old Law provision would have been the precondition ofthe underlying trial since, had it been unconstitutional, the Complain-ant with the Korean mother would have acquired Korean nationalityand therefore the deportation order issued on the basis of petition-er's presupposed status as an alien would have been unenforceable. However, the Old Law was revised, and acquisition of nationality byheredity followed either father's or mother's nationality in the New Law (Article 2 (1)[1]), which governed the underlying case, startingJune 14, 1998 (according to Supplementary Provision, Article 1).Therefore, the Old Law provision lost its character as the precon- dition of the underlying trial during its pendency and is not legallyvalid as the subject mater at this constitutional review.

2. A. The transitional clauses of the New Law extended its ben-efit to the formerly ineligible borne to a foreigner mother under theOld Law but only to those borne within 10 years of the enactment of the New Law. In deciding whether the transitional clauses areconstitutional, one must first decide whether the limiting of acquisi- tion of nationality by

heredity to father's nationality in the Old Law was constitutional.

B. The Old Law adopted the paternal lineage system that coin-cided a child's nationality at birth to its father's nationality anddiscriminatingly granted the mother's nationality only supplementaryimportance. Such discrimination between the child of a Korean fatherand a foreigner mother and that of a Korean mother and a foreignerfather disadvantages the children of Korean mothers and the mothers themselves, and therefore violates the principle of male-female equal-ity in Article 11(1) of the Constitution.

Among marriages between Koreans and foreigners, the ones byKorean males and the ones by Korean females are not particularlydifferent because of the sexual difference. Children of the two typesof marriages are equipped with the equal abilities and potential toadapt to Korea's legal order and culture and to live without defaultin the community. The Old Law, however, connects the nationalityof the whole family only that of the father, violating the principlethat family life shall be entered into and sustained on the basis ofequality of the sexes in Article 36(1) of the Constitution.

Children with Korean mothers are foreign nationals. Therefore,they cannot be public officials of the Republic of Korea. They eithercannot enjoy or can enjoy only limitedly the freedom to move one'sresidence, the freedom to choose occupations, the right to property,the right to elect and be elected, the right to petition for the State'scompensation, and social rights. Therefore, the Old Law severelydiscriminates against the children of Korean mothers in comparisonto those of Korean fathers, and violates the principle of equality ofthe Constitution.

3. A. When the paternal lineage system of the Old Law waschanged to the paternal-maternal lineage system of the New Law,Supplementary Provisions extend the benefit of the New Law to thoseformerly ineligible borne by Korean mothers as long as they wereborne within 10 years before the effective date of the New Law andhas taken certain steps. Supplementary Provisions again discriminateon the basis of whether the children were less than 10 years old atthe time of the putting into effect of the New Law in providing relieffrom the unconstitutional discrimination of the Old Law. Supple-mentary Provisions violate the principle of equality of the Constitu-tion.

B. If the Constitutional Court issues a decision of unconstitu-tionality or a simple decision of nonconformity to the Constitution,Supplementary Provisions will become ineffective on the day of theissuance. Then, even those borne by Korean mothers within 10 yearsbefore the effective date of the New Law will lose the basis toac-quire the nationality (Supplementary Provisions), leaving the countrygoverned by the principle of the rule of law with an unacceptablevacuum in law.

Therefore, Supplementary Provisions, though uncon-stitutional, must be held temporarily effective until the legislatureenacts a new provision.

Parties

Requesting Court

Seoul High Court (97Bu776 Request for Constitutional Review)

Petitioner

Kim Gwang-ho

Counsel of record: Ahn Sang-woon

Original Case

Seoul High Court 96Gu10128, Cancellation of Deportation

Holding

1. The request for constitutional review of Article 2(1)[1] of theformer Nationality Act (enacted by Act No. 16 on December 20, 1948and prior to being wholly amended by Act No. 5431 on December 13,1997) is dismissed;

2. The portion that reads '. . .within 10 years' in Article 7(1) ofSupplementary Provisions of the Nationality Act (Wholly Amendedby Act No. 5431 on December 13, 1997) is nonconforming to theConstitution. This statutory provision shall be effective until thelegislature revises it.

Reasoning

1. Introduction to the Case and the Subject Matter for Review

A. Introduction to the Case

(1) The petitioner argued that the constitutionality of Article2(1)[1] of the former Nationality Act (enacted by Act No. 16 onDecember 20, 1948 and prior to being wholly revised by Act No. 5431 on

December 13, 1997; the Old Law, hereinafter) that had the paternallineage system in effect at the time of his or her birth on Septem-ber 3, 1955, is a precondition of a trial, and requested constitutionalreview. The requesting court granted the request on August 20, 1997and referred to the Constitution.

The outlines of the underlying cases as found by the requestingcourt are in the Separate Attachment (2. Outlines of Review onMerits of Reason for Requesting Constitutional Review in the decision of the Seoul High Court, 97Bu776, Request for Constitutional Review).

(2) During the pendency of the review, the Old Law was whollyrevised by Act No. 5431 on December 13, 1997 into a system thataccepted either a father's or a mother's lineage (the New Law, here-inafter). Article 7 (1) of the Supplementary Provisions (Supplemen- tary Provisions, hereinafter) included a transitional measure wherebythose born by Korean national mothers within 10 years before theeffective date of the New Law could acquire the nationality of theRepublic of Korea.

B. Subject Matter for Review

(1) The petitioner, born on September 3, 1955, cannot acquire the nationality of the Republic of Korea even in reliance on the New Lawdue to the 10 year period specified in the Supplementary Provision. The petitioner, however, will be able to do so if the ConstitutionalCourt invalidates the Supplementary Provision or finds it noncon-forming to the Constitution and then the National Assembly revisesit. From the perspective of the integrity of the legal system andthe efficiency in litigation, it is desirable to include it in the subjectmatter for review, and we do so. (11-1 KCCR 14, 98Hun-Ka17,January 2, 1999)

(2) The subject matter for review is the constitutionality ofArticle 2(1)[1] of the Old Law and the portion that reads ". . .within10 years" in Article 7(1) of Supplementary Provisions of the New Law.They are as follows:

former Nationality Act

Article 2

(1) Those who fall under one of the following subparagraphs areKorean nationals.

1. A person whose father is a national of the Republic ofKorea at his or her birth.

Nationality Act(Wholly revised by Act No. 5431 onDecember 13, 1997)

Article 2 (Acquisition of Nationality by Birth)

(1) A person falling under one of the following subparagraphsshall be a national of the Republic of Korea at the time of his orher birth:

1. A person whose father or mother is a national of theRepublic of Korea at the time of his or her birth.

Supplementary Provisions, Article 7 (Special Cases of Acquisitionof Nationality for Persons of Maternal Line by Adoption of JusSanguinis to Both Lines of Parents)

(1) A person who falls under one of the following subparagraphsamong the persons who have been borne by a mother of a nationalof the Republic of Korea within ten years before this Act enters intoforce may acquire the nationality of the Republic of Korea throughreporting to the Minister of Justice as determined by the Presiden-tial Decree within three years after the enforcement date of this Act:

1. A person whose mother is currently a national of theRepublic of Korea; and

2. A person whose mother was a national of the Republic of Korea at the time of her death, when his mother died.

2. Opinions of the Requesting Court and the Related

Parties

A. Reason for Requesting Constitutional Review

The Old Law specifies the paternal lineage system in violation ofArticle 11(1) of the Constitution that bans discrimination based ongender. It also treats the position of father or husband as superiorto that of mother or wife in violation of the equality of the genderin Article 36(1) of the Constitution.

B. Opinion of the Petitioner

The New Law allows, among those born by Korean mothers, only those born within 10 years before the effective date of the New Lawto acquire nationality, and therefore continues the infringing state ofaffairs upon the basic rights of the petitioner who was born beforeJune 13, 1988.

C. Opinion of the Minister of Justice

(1) Whether to use the place of birth (jus soli) or the lineage(jus sanguinis) as the qualification for one's nationality, and how to determine other matters concerning nationality belongs to legislative discretion.

The Old Law allows a marital child to acquire nationality using its father's nationality and a non-marital child to do the same usingtheir mother's nationality. It is customary that the legitimate childof a foreigner father acquires its father's nationality. Therefore, the Old Law adopts the paternal lineage system to prevent dual nation- ality, and therefore does not constitute discrimination between males and females.

The paternal lineage system has been questioned on its reason-ableness as a policy due to the changes in the social environment.However, it is not unconstitutional when judged in view of thehistorical, social, and cultural traditions at the time of its enactment.

(2) The New Law limited the period of retroactivity to 10 yearsin the Supplementary Provision, firstly because retroactivity is an exception that harms the stability of law and therefore its effectsshould be minimized as much as possible, and secondly because the New Law was aimed at providing relief to the children without anynationality. Most people born by Korean national mothers and alienfathers more than 10 years ago acquired nationality either throughnaturalization or acknowledgement under the Old Law or the NewLaw. The special provisions on the New Law did not have to cover them.

D. Opinion of the Minister of Reunification

The petitioner has stayed in China for a significant period oftime, and his base of living is also in China. Thus the petitionerdoes not fall under a North Korean escapee under Article 2(1) of the Act on the Protection and Settlement Support of Residents Escaping from North Korea.

E. Opinion of the Minister of Diplomacy and Trade

Our country does not recognize the nationality of North Korea.Therefore, a resident of North Korea can be considered as havingour nationality. It may cause a diplomatic problem with a thirdcountry if we recognize as our nationals those North Koreans resid-ing in the third country outside the reach of our effective control. There is no diplomatic problem in recognizing the nationality of aNorth Korean resident who already entered our country.

3. Decision

A. Concept and Nature of Nationality

(1) People are one of the three elements of a State, togetherwith territory and sovereignty. Nationality means the qualificationsor status of being a national of the State. Those who are notnationals are foreigners (foreign nationals, dual nationals, those of nonationality, etc.). Thus, nationals are permanent members who bearthe duty to obey the State's governing power no matter where theyhappen to be, and only in exceptional situations, they should obeythe governing power of the residing state.

Historically, before the establishment of modern states serfsbelong to estates and were treated as the belongings of lords. Even in modern states, an individual belong to and was demanded of loy-alty to the place of birth or to the lineage, and therefore did nothave a choice in nationality. However, inborn human rights ideology gave birth to a free democratic constitution based upon people's sov- ereignty, and this constitution, in respect of human dignity and worth,recognized as a basic right an individual's right to choose his orher political community that will influence his or her fate profoundly,namely, the right to choose nationality. Article 15 of the UnitedNation's Universal Declaration of Human Rights (December 10, 1948)declares "① Everyone has the right to a nationality ② No oneshall be arbitrarily deprived of his nationality nor denied the right tochange his nationality". In fact, each country restricts individuals' right to choose nationalities, and nationality has not become some-thing that one can choose as a matter of right.

(2) One acquires nationality by birth or by naturalization. Ac-quisition by birth follows either the lineage or the place of birth(According to a study by the Ministry of Justice, 72 countries outof 118 countries surveyed follow lineage and the other 46 followsthe places of birth).

Among those following lineage, European countries usually followboth father's and mother's lineage. In Asia, our old law, Muslimcountries in the Middle East, Taiwan, Indonesia, and Thailand followfather's lineage while all remaining countries including Japan andChina follow both father's and mother's lineage. On the other hand,the countries in North and South Americas mostly follow the placesof birth while extending nationality to those born outside the countryby either a father or a mother of the same nationality.

(3) Nationality is a legal union between the State and its mem- bers. It means protection and subjugation. It cannot be thought ofseparately from the State. In other words, nationality arises with theformation of a state and disappears with the collapse of a state.Nationality comes into being not through statutory provisions butthrough the formation of a state. Therefore, although a constitution delegates the task to a nationality statute, the statute itself governs the matters of constitutional dimension by concretizing and realizing the definition of people, the

element of a state.

B. Scope of Nationals

(1) The Founding Constitution of July 17, 1948 states the quali-fications of becoming a Korean national shall be prescribed by law (Article 3). In the same year, the Nationality Act was enacted byAct No. 16 on December 20. The Nationality Act was revised threetimes but only to strengthen the element of one-nationality-one-person by eliminating the possibilities of dual nationality, and haskept the original structure. The basic principles of the Old Law canbe summarized as the principles that nationality must be prescribedby statute; the father's lineage takes precedence in determining one's nationality; the father takes the central role in determination of one'snationality; one can have only one nationality; the whole familyshould have one nationality, etc.

The New Law, wholly amended by Act No. 5431 on December13, 1997, coincided with our withdrawal of the reservation on themale-female equality clause in the United Nation's 1984 Conventionon the Elimination of All Forms of Discrimination against Womenwhich we had reserved when we signed on it. There, the father'slineage clause was revised to conform to the principle of equalityand was otherwise revised to conform to the reality and to improve on inadequate provisions reasonably.

(2) Our Constitution has stated since the Founding Constitution,The territory of the Republic of Korea shall consist of the Koreanpeninsula and its adjacent islands. (Article 4 of the Founding Con-stitution; Article 3 of the current Constitution)

The Supreme Court has ruled accordingly that North Korea ispart of the Korean peninsula and therefore subject to the sovereign-ty of the Republic of Korea, and therefore that North Korean resi-dency should not interfere with the acquisition of the nationality ofthe Republic of Korea. Therefore, the Provisional Ordinance onNationality (South Korean Provisional Government Act No. 11, May11, 1948) stated in Article 2(1) that a person born to a Korean fathershall acquire the nationality ofChosun. Then, the Founding Consti-tution, in Article 3, stated that the qualifications of nationality of the Republic of Korea should be prescribed by statute, and in Article 100, stated that all current laws and rules were effective unless they vio-lated then Constitution. So, the Supreme Court ruled that, a personborn to a Korean father even though he or she had already acquireda North Korean nationality according to the North Korean law, ac- quired the nationality of Chosun according to the Provisional Ordi-nance and then became a national of the Republic of Korea upon thepromulgation of the Founding Constitution on July 17, 1948 (Kong1996 Ha, 3602, 96Nu1221, Supreme Court, November 12,

1996)

The Minister of Diplomacy and Trade said that, although it maycause a diplomatic problem with a third country or North Korea if we recognize as our nationals those North Koreans residing in thethird country or in North Korea outside the reach of our effectivecontrol. There is no diplomatic problem in recognizing the nation-ality of a North Korean resident who already entered our country.

(3) The requesting court made a finding that the mother of thepetitioner is a national of the Republic of Korea. Therefore, we limitour decision to whether the petitioner acquires the nationality of theRepublic of Korea by birth under the Constitution and the NationalityAct.

C. Whether the Old Law is the Precondition of the

Original Trial

At the time the court requested this constitutional review, theOld Law provision would have been the precondition of the underly-ing trial since, had it been unconstitutional, the petitioner with theKorean mother would have acquired Korean nationality and therefore the deportation order issued because of the petitioner's status as an alien would have been unenforceable (The April 13, 1996 deportation order against the petitioner was suspended by the Seoul High Court,and the petitioner released from custody). However, the Old Lawwas revised on December 13, 1997, and acquisition of nationality byheredity now followed both a father's and a mother's nationality inthe New Law (Article 2 (1)[1]), which governed the original case,starting June 14, 1998 (according to Supplementary Provision, Article 1).

Therefore, the Old Law provision lost its character as the pre-condition of the original trial during its pendency, and the relevantportion of the constitutional review should be dismissed according to Holding 1.

D. Decision on Supplementary Provision

(1) The Nature of Supplementary Provision

Supplementary Provision is a transitional clause of the New Lawoccasioned by the revision of the paternal lineage system of the Old Law into the paternal-maternal lineage system of the New Law thatextended its benefit to the formerly ineligible borne to a foreignermother under the Old Law but only to those borne within 10 yearsbefore the effective date of the New Law.

In deciding whether the transitional clauses are constitutional,one

must first decide whether the limiting of acquisition of nation-ality by heredity to that of father's nationality in the Old Law wasconstitutional.

(2) Unconstitutionality of the Old Law Provision

(A) The preamble of the Constitution shows that it is people thatlegislated the Constitution. Article 1(2) states that the sovereigntyof the Republic of Korea shall resided in the people, declaring peopleas the owner of the sovereignty. Chapter 2 of the Constitution istitled 'Rights and Responsibilities of People', and each provision ofthe Chapter explicitly shows that 'people' are the owners of basicrights. Article 2(1) states, the qualifications of becoming a Koreannational shall be prescribed by law, leaving the matters about theowners of basic rights to the formation of the legislature.

The Minister of Justice argues that, since the legislature has abroad discretion in determining the qualifications of a national, whether to use the place of birth (jus soli) or the lineage (jussanguinis) as the qualification for one's nationality. The Minister argues also that, even if the lineage system is adopted, whether itwill consider the place of birth or requires both parents to be Koreanand whether one can be a dual national at birth all belong to thelegislative discretion. However, when the qualifications of being anational are determined by statute under the delegation of the Con-stitution, human dignity and worth, the principle of equality, andother constitutional mandates protecting basic rights restrict the leg-islation. Therefore, we reject the argument by the Minister ofJustice that all provisions about nationality should reviewed under the standard of whether the legislature exceeded the scope of rea-sonable discretion.

(B) Article 11(1) of the Constitution states "all citizens shall beequal before the law, and there shall be no discrimination in political,social or cultural life on account of sex, religion or social status",announcing the principle of equality.

The principle of equality in Article 11(1) of the Constitution is afundamental mandate of the order of rule of law. It prohibits all state agencies from treating adversely a person or a certain groupwithout just cause in applying laws. Therefore, all people bear thesame obligations and enjoy the same rights under the laws, and nostate actor can apply or cannot apply law to certain people disad-vantageously or advantageously. The normative meaning of Article11(1) does not stop at 'equality in application of law.' It also re-quires the legislature to justify its standard of value used in distri-buting the rights and responsibilities through legislation. Hence'equality in law-making.' Therefore, the principle of equality rejectsany criterion of discrimination aimed at extending different legaleffects to people if the criterion cannot be objectively justified. How much the legislature is bound by the Article

11(1) principle of equal-ity is determined by the regulated subject matter and the charac-teristics of the criterion of discrimination.

The Constitution ruled in Discharged Soldiers' Assistance ActArticle 8(1) Unconstitutionality Case as follows (11-2 KCCR 789-791,98Hun-Ma363, December 23, 1999);

In equality review, whether a strict or relaxed standard shall beused depends on the scope of the legislative-formative power givento the legislature. However, those cases where the Constitution spe-cially demands equality shall be scrutinized under a strict standard.If the Constitution itself designates certain standards not to be used as reason for discrimination or certain domains in which discrimina- tion shall not take place, it is justified to strictly scrutinize the dis-crimination based on that standard of in that domain. Also, if dif-ferential treatment causes a great burden on the related basic rights,the legislative-formative power shall be curtailed and strictly scru-tinized.

The veterans' extra point system requires a strict standard ofreview for both of the two reasons. Article 32(4) of the Constitutionstates, "women's labor is specially protected, and they are not un-justly discriminated in hiring, wages, and conditions of employment,"specially requiring gender equality in the domain of 'labor' of 'em-ployment'. The veterans' extra point system differentiates men andwomen in that domain. Also, it causes a great burden on theArticle 25 of the Constitution the right to hold public offices.

The standard of constitutional review concerning a violation ofthe principle of equality and the reasoning that male-female discrim- ination is unconstitutional proposed in the above case can be adopted for this case. The Old Law adopted the paternal lineage system thatcoincided a child's nationality at birth to its father's and discrimi-natingly granted the mother's nationality only supplementary impor-tance. Such law is unconstitutional. In other words, a discrimina-tion between the child of a Korean father and a foreigner mother andthat of a Korean mother and a foreigner father disadvantages thechildren of Korean mothers and the mothers themselves, and isclearly against the principle of male-female equality in Article 11(1) of the Constitution. It is constitutionally unacceptable.

(C) The Constitution in Article 36(1) states, "marriage and familylife shall be entered into and sustained on the basis of individualdignity and equality of the sexes, and the State shall do everythingin its power to achieve that goal."

Article 36(1) of the Constitution states the constitutional principleof the institution of marriage and family. It declares that the insti-tution of marriage and family must be structured with due respect to human dignity and pursuant to the principle of democracy. (9-2KCCR 17,

95Jun-Ka6, July 16, 1997) This provision codifies therequirement that family life be established and maintained on thebasis of the equality of the two sexes. When the legislature formsthe institution of family, it must consider that.

Let us review the situation governed by the Old Law provision.Among marriages between Koreans and foreigners, the ones byKorean males and the ones by Korean females are not particularlydifferent because of the sexual difference. Children of the two typesof marriages are equipped with the equal abilities and potential toadapt to Korea's legal order and culture and to live without default in the community. The Old Law, however, connects the nationalityof the whole family only that of the father. The father is made theleader or the center of the family. It is questionable whether suchpractice is just in light of the provisions of the Constitution thatdeclares the equality of the two sexes in family life.

Acquisition of nationality based on lineage guarantees a member-ship in the social unit, a family, and a membership in a particularnational community, while providing the basis for strengthening theparent-child relationship. If this relationship is recognized onlybetween the father and the child but not between the mother and thechild, such result amounts to the denigration of women's statuswithin the family and a threat to maternal authority.

Therefore, the Old Law provision violates the principle of theequality of the two sexes in family life in Article 36(1) of the Con-stitution.

(D) The Old Law provision that governs the nationality of achild of parents with different nationalities discriminates on the basisof one parent's nationality. As a result, Korean mothers and theirchildren are significantly disadvantaged in comparison to Koreanfathers and their children in legal status.

Children with Korean mothers are foreigners. They enjoy ex-emption from military services but most of the disparate treatmentsare disadvantageous to them. As foreigners, they cannot be thepublic officials of the Republic of Korea (the State Public OfficialsAct, Article 35; the Local Public Officials Act, Article 33; the Diplo-matic Public Officials Act, Article 8). They cannot enjoy freedomof residence and the right to move at will (Constitution, Article 14; Immigration Control Act, Article 7, 17), freedom of occupation (Con-stitution, Article 15; Fisheries Act, Article 5; Pilotage Act, Article 6),right of property ( Constitution, Article 23; Foreigner's Land Acqui- sition Act, Article 3; Patent Act, Article 25; Aviation Act, Article 6), right to vote and right to hold public office (Constitution, Article 24,25; Act on the Election of Public Officials and the Prevention ofElection Malpractices, Article 15,

16), right to claim compensation(Constitution, Article 29(2); State Compensation Act, Article 7), rightto receive aid for injury from criminal acts (Constitution, Article 30;Crime Victims Aid Act, Article 10), right to vote on Referendum(Constitution, Article 72; National Referendum Act, Article 7) andother social rights or enjoy only limitedly. There is no substantivepublic interest that justifies this discrimination in granting childrendifferent nationalities depending on their father's or mother's nation-ality.

The Minister of Justice argues that the Old Law allows a maritalchild to acquire its father's nationality and a non-marital child to do the same using its mother's nationality and therefore does notconstitute discrimination between males and females. Since it iscustomary that the marital child of a foreigner father acquires itsfather's nationality, the Old Law on the basis of the paternal lineagesystem is reasonable as a measure to prevent dual nationality.However, the above said discrimination is not justified just becausethe Old Law Provision contributes to the prevention of dual national-ity in the relationship between the children and the State. From thechildren's perspective, the demerits of dual nationality are not greaterthan the merits in obtaining the additional nationality of the mother.There is no absolute public interest that mandates rejection of thechildren's joining of the State. Thus, the Minister of Justice'sargument should be rejected.

Therefore, the Old Law Provision clearly discriminates againstthe children of Korean mothers in comparison to those of Koreanfathers from the children's perspectives, and therefore violates theprinciple of equality of the Constitution.

(E) As examined above, the Old Law Provision based on thepaternal lineage system violates the principle of equality of Article11(1) of the Constitution and the principle of equality of the twosexes in family life in Article 36(1) of the Constitution, and through such discrimination, materially restricts basic rights of the children. It is unconstitutional.

(3) The Supplementary Provision is nonconforming to the Con-stitution

(A) The legislature revised the Old Law by Act No. 5431 through major revision on December 13, 1997, and changed the rule on acqui-sition of nationality by heredity from that of a paternal lineagesystem to a paternal-maternal one (the New Law, Article 2(1)[1]).As a result, the unconstitutionality of the Old Law Provision wascured. However, in restoring to the children of Korean mothersbasic rights formerly infringed by the Old Law Provision, the Sup-plementary Provision granted Korean nationality only to those chil-dren born within 10 years before the effective date of the New Law, and not to those children like

the petitioner born more than 10 years before the effective date of the New Law. The issue is whether the time limit of '10 years' can be constitutionally justified.

The Minister of Justice argues that most people born by Koreannational mothers and foreigner fathers more than 10 years beforethe effective date of the New Law already resolved their nationalityissues by acquiring Korean nationality either through naturalizationor acknowledgement under the Old Law or the New Law.

However, there is no reasonable proof that people older than 10years had resolved their nationality issues. There is no believablestatistics proposed for those older than 10 years without any nation-ality.

Also, the fact that the Supplementary Provision grants the op-portunity for acquiring nationality only to those born within 10 yearsbefore the effective date of the New Law may be explained by the recent change in the standard of values concerning sex. However, there is no reasonable basis to believe that the legal conception ofanti-sex-discrimination came into being during the ten years before the effective date of the New Law. Article 8 of the Founding Con-stitution stated, all citizens shall be equal before the law, and thereshall be no discrimination in political, economic, social, or culturallife on account of sex, religion or social status. The change in thelegal conception about sex discrimination had already taken placethen at the latest.

Therefore, we do not find much weight in the argument of theMinister of Justice that the broad application of the SupplementaryProvision to all victims of the Old Law Provision may threaten thestability of law because it is retroactive legislation. When theSupplementary Provision provides relief to those disadvantaged by the unconstitutional discrimination due to the Old Law Provision, the age10 years is not a constitutionally appropriate standard to use. TheSupplementary Provision thereby works yet another discriminationand violates the principle of equality of the Constitution.

(B) When a statutory provision violates the Constitution, we must in principle issue a decision of unconstitutionality and thereby protectthe normative power of the Constitution. However, when the elimi- nation of the statutory provision from the codes may cause vacuum or confusion in law, we can issue a decision of nonconformity to the Constitution and leave the statutory provision effective temporarily.In other words, if a constitutional state of leaving the unconstitu-tional statutory provision temporarily effective is far more constitu-tionally desirable than an unconstitutional state of vacuum in lawbrought on by a decision of unconstitutionality, the Constitutional Court may need to subscribe to the perspective of the stability oflaw and prevent vacuum in law and the resulting disorder, which areunacceptable to the government by rule of

law, by leaving the un-constitutional statutory provision temporarily effective for a limitedperiod until the legislature improves it in the manner consistent withthe Constitution (11-2 KCCR 417, 97Hun-Ba26, October 21, 1999).

In this case, the Supplementary Provision is absolutely needed asa transitional measure to give relief to the children of Koreanmothers who formerly could not acquire nationality because of theOld Law Provision. If the Constitutional Court issues a decision ofunconstitutionality or a simple decision of nonconformity to theConstitution, the Supplementary Provision becomes immediately void upon the Constitutional Court's announcement of its decision. As a result, the provision opening the door to acquisition of nationality atleast to those born within 10 years of the enactment of the New Lawwill become void, and we will have vacuum in law unacceptable to the government by rule of law. Then, it will be another violation of the Constitution to bring about vacuum in law with respect to thosewho could benefit from the Supplementary Provision or to sowanother cinder of legal instability with respect to the responsibleadministrative agencies and the related families. The SupplementaryProvision shall remain effective for those who can benefit from ituntil it is revised.

Therefore, the Supplementary Provision is nonconforming to theConstitution but is hereby ordered to be effective temporarily untilthe legislature enacts a new law.

4. Conclusion

For the above reasons, all Justices decide upon a unanimousdecision that the request for constitutional review of Article 2(1)[1] of the Old Law is dismissed. The portion that reads '. . .within 10years' in Article 7(1) of Supplementary Provisions of the New Lawis nonconforming to the Constitution, but it shall remain effectiveuntil the legislature revises it.

Justices Kim Yong-joon(Presiding Justice), Kim Moon-hee, Chung Kyung-sik, Koh Joong-suk, Shin Chang-on, Lee Young-mo (Assigned Justice), Han Dae-hyun, Ha Kyung-chull, Kim Young-il

[Separate Attachment]

Summary of the Original Cases

(1) The petitioner was born on September 3, 1955 to the father Kim Tae-ik (born October 13, 1928) and the mother Yum Hae-soo(born

March 27, 1933), grew up in the City of Manpo in NorthPyungan Province, and moved to China.

(2) The petitioner entered the Republic of Korea secretly throughthe sea shore of Mooan-Gun of Chonnam Province around 3 a.m. onNovember 4, 1955 and came up to Seoul. On the following day,when stopped for a questioning by a police officer, the petitionerexpressed the intent to defect but was detained at the SeoulForeigner Protection Facility on the eighth of the same month. The manager of the Seoul Foreigner Protection Facility issued a forceful deportation order against the petitioner.

(3) The petitioner then argued that he was a national of theRepublic of Korea under the Constitution and the Nationality Act of the country, and he was not a 'foreigner' subject to the deportationorder. The petitioner then sought cancellation of the deportationorder in this instant suit.

(4) The petitioner argues that it is a Korean national on thebasis that its father Kim Tae-ik was a Korean national. UnderArticle 2(1) of the Provisional Ordinance Regarding Nationality (An-nounced on May 11, 1948 by South Korean Provisional GovernmentAct No. 11) and Articles 3 and 100 of the Founding Constitution, thesaid Kim acquired nationality of the Republic of Korea as soon asthe Founding Constitution was announced, and then the petitioner was born to the said Kim on September 3, 1955, thereby acquirednationality of the Republic of Korea under Article 2(1)[1] of theNationality Act enacted by Act No. 16 on December 20, 1948. How-ever, the records show that the said Kim, although born a Korean(Chosun-in), acquired Chinese nationality while living in China beforethe said Provisional Ordinance Regarding Nationality was enacted.The records are not sufficient in showing that the said Kim laterabandoned his Chinese nationality. Therefore, the petitioner born to the said Kim while he was a Chinese national was not a national of the Republic of Korea.

(5) The petitioner alternatively argues that it is a Korean nation- al on the basis that its mother Yum Hae-soo was a Korean national.Her father was a Korean (Chosun-in). Also, under Article 2(1) ofthe Provisional Ordinance Regarding Nationality (Announced on May11, 1948 by South Korean Provisional Government Act No. 11) and Articles 3 and 100 of the Founding Constitution, the said Yum ac-quired nationality of the Republic of Korea as soon as the FoundingConstitution was announced. The petitioner was then born to the said Yum on September 3, 1955, and it argues that it should haverightfully acquired the nationality of the Republic of Korea. Thepetitioner points out that Article 2(1)[1] of the Nationality Act en-acted by Act No. 16 on December 20, 1948 is based on paternallineage and therefore allows the children only of the fathers whoare the nationals of the Republic of Korea to acquire the

nationality of the Republic of Korea. The petitioner argues that it violates theprinciple of equality of the Constitution and unjustly discriminatesmales from females, and filed this request for constitutional review.