Limitation of Period of Special Cases Allowing Children of a Korean Mother to Obtain Korean Nationality

[27-2(B) KCCR 206, 2014Hun-Ba211, November 26, 2015]

This is the case in which the Constitutional Court held that a clause, “by reporting to the Minister of Justice through means prescribed by the Presidential Decree by December 31, 2004”, in Article 7 Section 1 (amended by Act No. 6523 on December 19, 2001) of an addendum to the Nationality Act (Act No. 5431, December 13, 1997) does not violate the principle of equality. The addendum provides provisions for special cases under which children of a Korean mother born between June 14, 1978 and June 13, 1998 may acquire Korean nationality.

Background of the Case

(1) The Nationality Act, in the process of being wholly revised by Act No. 5431 as of December 13, 1997, abandoned the paternalius sanguinisprinciple and switched over to the unlimitedius sanguinisprinciple, and as interim measures, included the provisions for special cases under which a person whose mother is a Korean national or whose deceased mother had Korean nationality at the time of her death (hereinafter collectively referred to as the “Person with a Korean Mother”) and who was born during a ten-year period immediately prior to enforcement of the revised Nationality Act could obtain Korean nationality by reporting to the Minister of Justice within three years from the date on which the revised Nationality Act came into force.

(2) The Constitutional Court, in its 97Hun-Ga12 decision rendered on August 31, 2000, held that a clause, “during a ten-year period”, in Article 7 Section 1 of an addendum to the former Nationality Act (Act No. 5431, December 13, 1997) (hereinafter referred to as the “Addendum to the Former Act”), is nonconforming to the Constitution

on the ground that the clause which does not suggest a reasonable criteria in terms of the Constitution and indeed has a discriminatory impact is against the principle of equality. The National Assembly, in compliance with the Court’s decision, revised the Addendum to the Former Act by broadening the scope of beneficiaries eligible for acquisition of Korean nationality under the special cases as “the Person with a Korean Mother who was born between June 14, 1978 and June 13, 1998” and extending the reporting period under the special cases until “December 31, 2004.”

(3) The complainant is a male U.S. citizen who was born on April 24, 1980. At the time of his birth, his father was a U.S. citizen and mother was a Korean national. The complainant, in seeking to obtain Korean nationality, on November 6, 2013, reported pursuant to Article 7 Section 1 of an addendum (amended by Act No. 6523 on December 19, 2001) (hereinafter referred to as the “Revised Addendum Provision”) to the National Act (Act No. 5431, December 13, 1997). The request was rejected on the ground that the reporting period prescribed in the Revised Addendum Provision expired.

(4) Thereupon, the complainant on February 5, 2014 filed an action seeking cancellation of the rejection disposition above, and as a motion requesting a constitutional review of the clause, “by December 31, 2004”, in the Revised Addendum Provision filed during the pendency of the said action was dismissed, filed a constitutional complaint in this case on May 12, 2014.

Subject Matter of Review

The constitutional complaint filed by the complainant asked the Court to review the clause, “by December 31, 2004”, in the Revised Addendum Provision that provides provisions for special cases under which the Person with a Korean Mother could obtain Korean nationality.

Nonetheless, since the clause specifying the reporting period by December 31, 2004, comprises the provisions for special cases allowing the Person with a Korean Mother to obtain Korean nationality in conjunction with the reporting requirement to the Minister of Justice, it is appropriate to include the part on the reporting requirement in the scope of the Court’s review and decision as well.

Then, the question in this case is whether the clause that reads, “by reporting to the Minister of Justice through means prescribed by the Presidential Decree by December 31, 2004”, in Article 7 Section 1 (amended by Act No. 6523 on December 19, 2001) of an addendum to the Nationality Act (Act No. 5431, December 13, 1997) (hereinafter referred to as the “Provision at Issue”) contravenes the Constitution. The Provision at Issue reads as follows:

Provision at Issue

Article 7 Section 1 (Amended by Act No. 6523 on December 19, 2001), Addendum to the Nationality Act (Act No. 5431, December 13, 1997)

Article 7 (Special Cases Allowing Children of a Korean Mother to Obtain Korean Nationality Pursuant to Adoption of UnlimitedIus sanguinisPrinciple)

(1) A person who was born to a mother with Korean nationality between June 14, 1978 and June 13, 1998 and who falls under any of the following subparagraphs may obtain Korean nationalityby reporting to the Minister of Justice through means prescribed by the Presidential Decree by December 31, 2004:

1. A person whose mother is currently a Korean national

2. A person whose deceased mother had Korean nationality at the time of her death

Summary of the Decision

The Provision at Issue treats the following two types of persons

differently in the way of obtaining Korean nationality: the Person with a Korean Mother born between June 14, 1978 and June 13, 1998 who may obtain Korean nationality pursuant to the Revised Addendum Provision (hereinafter referred to as the “Person with a Korean Mother Subject to Special Cases”) and the Person with a Korean Mother born on or after June 14, 1998 who automatically obtains Korean nationality by birth to a Korean mother.

The purpose of the Revised Addendum Provision is, as the Nationality Act abandoned the paternalius sanguinisprinciple and shifted to the unlimitedius sanguinisprinciple, to ease discrimination against the Person with a Korean Mother by granting the Person an opportunity to obtain Korean nationality, and the Provision at Issue in the Revised Addendum Provision requires the Person with a Korean Mother Subject to Special Cases to report to the Minister of Justice by December 31, 2004 in order to obtain Korean nationality. Such reporting requirement has reasonable objectives: it aims to confirm at an early stage nationality relations of the Person with a Korean Mother who had not been a Korean national, to deter the possibility of the Person with a Korean Mother abusing the right to obtain the nationality, to reduce an unnecessary waste of administrative resources, and to make sure whether the Person with a Korean Mother who is not yet a Korean national and a foreigner is willing to obtain Korean nationality. The objectives are reasonable in consideration of cases of Germany and Japan as well. These countries switched over to the unlimitedius sanguinisprinciple earlier than Korea and maintained special cases equivalent to the special cases in this case. The reporting period of the special cases in Germany and Japan was also three years from the enforcement date of the respective revised nationality legislation.

Also, the Nationality Act already provides adequate relief measures for the Person with a Korean Mother who was not able to report during the period prescribed by the provisions for special cases: if the Person with a Korean Mother was unable to report during the period due to force majeure causes, he or she could still acquire Korean nationality by

reporting within three months from the date on which the pertinent force majeure cause ceases to exist (Addendum to the Nationality Act, Act No 5431, December 13, 1997), and if the Person with a Korean Mother failed to report due to other causes, he or she could still obtain Korean nationality without troubles by applying for Simple Naturalization (Article 6 Section 1 of the Nationality Act) or Special Naturalization (Article 7 Section 1 of the Nationality Act).

Then, the Provision at Issue which mandates the Person with a Korean Mother Subject to Special Cases to report to the Minister of Justice by December 31, 2004 in order to obtain Korean nationality cannot be deemed discrimination not based on rational grounds between the Person with a Korean Mother Subject to Special Cases and the Person with a Korean Mother who was born after the revised Nationality Act came into force. Thus, the Provision at Issue does not violate the principle of equality.

Summary of Dissenting Opinion by Four Justices

The intent of enacting special cases allowing the Person with a Korean Mother to acquire Korean nationality was not to merely grant a dispensation upon the Person with a Korean Mother who was born prior to adoption of the unlimitedius sanguinisprinciple. The intent was to, along with abolishment of the paternalius sanguinisprinciple which was held as a violation of the principle of equality, relieve those Persons who were born before the abolishment and thus were not entitled to obtain Korean nationality from disadvantages of being unconstitutionally discriminated. Then, the Revised Addendum Provision should be able to provide adequate remedy for the Person with a Korean Mother who suffered disadvantages as a result of the discrimination.

The Provision at Issue, with respect to the Person with a Korean Mother Subject to Special Cases, consistently requires reporting under the provisions for special cases to be done during a three-year period from December 19, 2001 to December 31, 2004. However, still forcing

the reporting to be done by December 31, 2004 even upon showing of exceptional circumstances due to which the Person was unable to report in due course (e.g., the Person with a Korean Mother was an infant, there was a reason that the Person was not able to acknowledge that the Person himself or herself is indeed not a Korean national, or the Person was not able to report to the Minister of Justice due to circumstances that were hardly attributable to the Person), is nothing but an idea that only serves the expediency of the administration, and cannot be deemed appropriate remedial measures for the Person with a Korean Mother under the above exceptional circumstances.

According to the statistics released by the Ministry of Justice, the number of the Person with a Korean Mother who obtained Korean nationality during the period prescribed by the provisions for special cases was merely 1,213. This number supports that it is difficult to conclude that most of the Persons with a Korean Mother eligible for the special cases received relief.

The majority opinion expressed a concern that allowing exceptions to the reporting period for the special cases will give a rise to various types of adverse ramifications. Nonetheless, such ramifications are the ones that had been prevailed since adoption of the paternalius sanguinisprinciple, and they are hardly recognized as problems emerged as a result of having exceptions to the reporting period for the special cases.

Although Article 7 Section 3 of an addendum to the Nationality Act allows an exception for failure to report due to “natural disasters and other force majeure causes”, receiving relief under this exception is almost impossible. The “natural disasters and other force majeure causes” requirement in Article 7 Section 3 is a narrower requirement than “justifiable causes” or “causes not attributable to an applicant.” Moreover, certain requirements specified in the Nationality Act must be satisfied to obtain Korean nationality through Simple Naturalization and Special Naturalization under the Nationality Act, and because naturalization through Simple Naturalization and Special Naturalization ultimately requires approval of the Minister of Justice, if the Minister

rejects the request for naturalization, the Person with a Korean Mother can’t obtain Korean nationality. Therefore, it is difficult to regard that the above measures are effective remedies.

The complainant in this case was listed as a son in his father’s book of removed entries from the family register (under the former Family Register Act). He also finished all of his studies and military service in Korea and is now working as a resident physician in a hospital in Korea. Barring the Person with a Korean Mother like the complainant in this case, who was under circumstances sufficient to mistake that he himself was a Korean national and completed military service based on such misunderstanding, from obtaining the nationality merely by reason of expiration of the reporting period under the special cases is an unreasonable discrimination against the Person with a Korean Mother who was under circumstances in which he or she was unable to report during the period prescribed by the provisions for special cases.

Then, the Provision at Issue which limits the period for special cases by December 31, 2004 is not sufficient to be regarded as an effective remedy to the Person with a Korean Mother Subject to Special Cases and thus the Provision is against the principle of equality.