Plaintiff (Law Firm Gong & Kim, Attorneys Cha Jong-ok et al., Counsel for the plaintiff-appellant)

The Minister of Justice

December 6, 2013

1. On March 5, 2013, the Defendant’s disposition to revoke the Plaintiff’s rejection of the declaration of renunciation of nationality against the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On April 13, 1995, the Plaintiff was born between the father of the American nationality and the mother of the Korean nationality (the mother) in the United States of America (hereinafter “U.S.”).

B. Article 2 subparagraph 1 of the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997) which the Plaintiff was in force at the time of birth provided that “A person who is a national of the Republic of Korea at the time of birth shall be a national of the Republic of Korea.” However, as the Nationality Act was amended by Act No. 5431 of Dec. 13, 1997, Article 2 subparagraph 1 of the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997), “A person who was a national of the Republic of Korea at the time of birth was replaced by a national of the Republic of Korea at the time of birth, and Article 7 subparagraph 1 of the Addenda thereto, which was born by a mother who was a national of the Republic of Korea at the time of birth of the Republic of Korea, may acquire the nationality of the Republic of Korea by reporting to the Minister of Justice as prescribed by the Presidential Decree within three years from the enforcement date of this Act.”

C. Accordingly, on September 3, 1998, the plaintiff reported the special case of acquisition of nationality to the mother-born under the supplementary provision of this case. The Minister of Justice accepted the above report on November 17, 1998, and the plaintiff acquired the nationality of the Republic of Korea.

D. On January 18, 2013, the Plaintiff, at the time of enlistment in the first militia service, filed a report on the renunciation of nationality of the Republic of Korea to the Defendant via a consular official of the U.S. Francco under Article 14(1) of the Nationality Act on the premise that he is “person with multiple nationalities” with the obligation to nationality selection under Article 12 of the Nationality Act, but the Defendant rejected the said report on April 17, 2013 for the following reasons (hereinafter “instant disposition”).

[Grounds for Elimination]

The plaintiff acquired the nationality of the Republic of Korea on September 3, 1998 in accordance with the special case of the acquisition of nationality of a mother-born person (Article 7 of the Addenda to the Nationality Act, Law No. 5431), and reserved the obligation to waive foreign nationality for two years from the date of cancellation of military service (which falls under any of the military service completion, enlistment in the second citizen service, exemption from military service) due to a minor reason at the

Therefore, within two years from the date on which the duty of military service is terminated, the Plaintiff needs to renounce the nationality of a foreign country (U.S.) or to “a letter of non-exercise of foreign nationality” (Article 3 of the Addenda to the current Nationality Law and Article 5 of the

In other words, even if the plaintiff can waive his foreign nationality or maintain his multiple nationality through a non-exercise of his foreign nationality, he cannot leave his Korean nationality without permission.

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 4, Eul's 1, the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The party's assertion

(1) The defendant's assertion

According to Articles 11-2, 12, and 14 of the current Nationality Act, "person with multiple nationalities" under Article 11-2 of the Nationality Act may report his/her renunciation of nationality as part of the obligation to choose nationality. However, the plaintiff does not constitute "person with multiple nationalities" under this context.

The plaintiff constitutes a foreigner who was a person who acquired the nationality of the Republic of Korea after reporting the special case of acquisition of nationality for a mother-born under the supplementary provision of this case, and only constitutes a person who is obligated to renounce foreign nationality or a person who is subject to non-exercise of nationality under Article 10 of the Nationality Act.

Article 16(1)1 of the former Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 22588, Dec. 31, 2010) provides, “A foreigner who has acquired the nationality of the Republic of Korea in accordance with Article 7 of the Addenda to the amended Nationality Act (Act No. 5431) and for whom the waiver of his/her foreign nationality is reserved pursuant to the proviso to Article 10(2) of the Act, “A person who has reserved the waiver of his/her foreign nationality” as “a person with the same meaning as a person with multiple nationality” (the current meaning as the person with multiple nationality). However, since the Enforcement Decree of the Nationality Act was deleted as amended by Presidential Decree No. 22588, Dec. 31, 2010, there is no ground to regard the Plaintiff as a person with multiple nationality who may report his/her renunciation of nationality.”

(2) The plaintiff's assertion

According to Article 16(1) of the former Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 22588, Dec. 31, 2010), when the Plaintiff reported the special case of the acquisition of nationality to the mother-borns, the Plaintiff constitutes “multi-national nationality” who is a person responsible for the selection of nationality. At the time, the Defendant also issued a public opinion statement by means of an official statement or press promotion, guidance of employees, etc., which is the person responsible for the selection of nationality in the case of the above person responsible for the acquisition of nationality. The Plaintiff believed that the Plaintiff acquired the nationality of the Republic of Korea by reporting the special case under the supplementary provision of the Addenda of this case. The Enforcement Decree of the Nationality Act was amended to exclude the said person from the multi-national nationality without any transitional provision, and based on this, the instant disposition was made in violation of the principle of trust protection.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The main sentence of Article 12(1) of the former Nationality Act (amended by Act No. 20275, May 4, 2010) provides that “A person who had both the nationality of the Republic of Korea and that of a foreign country before birth or reaching the age of 20 (hereinafter “foreign national”) before reaching the age of 22; a person who became a dual national after reaching the age of 20 shall choose one nationality in accordance with Articles 13 and 14 within 2 years; Article 16(1) of the former Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 2258, Dec. 31, 2010) provides that “A person who had acquired the nationality of the Republic of Korea and that of a foreign country before reaching the age of 20 pursuant to this Act shall be subject to the proviso of Article 12(1) of the former Nationality Act; Article 16(1) of the former Enforcement Decree of the Nationality Act provides that “A person who had acquired the nationality of the Republic of Korea and the foreign country before reaching the age of 20;

In addition, with the amendment of the Nationality Act by Act No. 20275 on May 4, 2010, Article 11-2(1) of the Nationality Act separate provision that "a person who has both the nationality of the Republic of Korea and that of a foreign country is a person with multiple nationality pursuant to this Act" was newly established, and Article 12 of the same Act provides that a person with multiple nationality must choose one nationality by a specified period prior to and after the amendment. According to the amendment of the above Act, the Enforcement Decree of the Nationality Act was amended by Presidential Decree No. 22588 on December 31, 2010. Article 16(1) of the amended Enforcement Decree of the Nationality Act excluded a person who has acquired one nationality from the Republic of Korea under Article 7 of the Addenda to the amended Nationality Act (Act No. 5431), which was previously stipulated in Article 11-2(1) of the Act, by stipulating "a person who has both the nationality of the Republic of Korea and that of a foreign country under this Act."

Therefore, due to the history of the amendment of the Enforcement Decree of the Nationality Act as above, a person of special relationship such as the Plaintiff is obliged to nationality selection under the Nationality Act, i.e., a person with multiple nationality who is not a “person with multiple nationality” who can report the renunciation of nationality, and both the original and the Defendant have examined the aforementioned arguments on the premise of the amendment.

However, Article 14 of the Constitution of the Republic of Korea provides that "all citizens shall enjoy the freedom of residence and movement." This is a freedom to freely determine the place of residence and place of residence without any interference with the state power, and in detail, it is included in the contents of "the freedom of nationality change" which may deviate from the nationality of the Republic of Korea (see Constitutional Court Order 2003Hun-Ga18, Oct. 28, 2004; Constitutional Court Order 2005Hun-Ma739, Nov. 30, 2006). Therefore, the issue of whether a person with multiple nationality who can report his/her renunciation of nationality within a given time constitutes a person with multiple nationality who is able to report his/her renunciation of nationality is the freedom of nationality change, i.e., the restriction on the freedom of residence and movement under the Constitution. Thus, in principle, Article 37 (2) of the Constitution provides that "All citizens' freedom and rights may be restricted by law only when necessary for national security, maintenance of order or public welfare, etc." should be regulated by Presidential Decree.

However, there is no provision on delegation of the Nationality Act, including Article 11-2 of the Nationality Act, that provides for "a person who falls under a person with multiple nationalities" as prescribed by Presidential Decree. In other words, Article 16(1) of the Enforcement Decree of the Nationality Act, which provides a person who falls under a person with multiple nationalities, merely provides for matters that should be prescribed by the Act without any authority, and thus, it cannot be deemed that the scope of a person with multiple nationalities as prescribed in Article 11-2 of the Nationality Act has become final and conclusive. Therefore, it is reasonable to view that the issue of whether a person who falls under a person with multiple nationalities falls under a person with multiple nationalities as part of a person with multiple nationalities under Articles 11-2(1) of the Nationality Act is not determined depending on whether a person with special exception is prescribed by each subparagraph of Article 16(1) of the Enforcement Decree of the Nationality Act, but is determined through a systematic interpretation of the Nationality Act. Accordingly, this should be examined below.

(2) Article 10(1) of the Nationality Act provides that “A foreigner who has acquired the nationality of the Republic of Korea and who has the nationality of the Republic of Korea shall waive the nationality of the Republic of Korea within one year from the date of acquisition of the nationality of the Republic of Korea.” However, Article 12(1) of the Nationality Act provides that “A person who has acquired the nationality of the Republic of Korea before fully turning twenty years of age may choose one nationality before fully turning twenty two years of age pursuant to Articles 13 and 14 within two years after fully turning twenty years of age: Provided, That a person who has acquired the nationality of the Republic of Korea after fully turning twenty years of age shall not exercise the nationality of the Republic of Korea pursuant to Article 10(2).” Article 14(1) of the Nationality Act provides that “A person with multiple nationality who has promised to choose the nationality of the Republic of Korea to leave the nationality of the Republic of Korea to the Minister of Justice through the head of a diplomatic mission abroad having jurisdiction over his domicile only if he has an address in a foreign country.” As seen earlier, Article 11-2(1) of the Nationality also provides that person with multiple nationality.

According to the above legal provisions, a foreigner who acquired the nationality of the Republic of Korea in the future is liable to renounce the foreign nationality under Article 10 of the Nationality Act, and a person who has both the nationality of the Republic of Korea and the foreign nationality in accordance with his birth is liable to nationality selection as a multiple nationality holder under Article 12 of the Nationality Act. In the end, the issue of this case is where a person of special relationship such as the plaintiff is included in the

However, Article 2 subparag. 1 of the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997) which adopted the principle of side-domination (hereinafter “former Nationality Act”) has been unconstitutional for the following reasons. In other words, Article 2 subparag. 1 of the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997) provides for discrimination against only the nationality of a child born at the time of birth, and only the nationality of a mother accords with a supplementary meaning. However, it goes against the principle of gender equality under Article 11(1) of the Constitution because it has an unfavorable effect on the mother and a foreign mother, and thus, it goes against the principle of equality under Article 10 subparag. 1 of the Constitution, which prevents a spouse from being married between Korean and Korean mother and a foreign mother, and both children can only be considered to have been in violation of the principle of freedom of residence and equality under the Constitution, which is a public official of the Republic of Korea (see Article 16(2).3).

In addition, Article 2(1)1 of the Nationality Act (amended by Act No. 5431 of Dec. 13, 1997) amended by Act No. 5431 of Dec. 13, 199, "the father or mother at the time of birth, who is a national of the Republic of Korea, shall acquire the nationality of the Republic of Korea at the time of birth and at the same time, and shall adopt the parent-child-child relationship principle. This was amended to eliminate the unconstitutionality of the above provisions of the former Nationality Act, and at the same time, Article 2(1)1 of the former Nationality Act (amended by Act No. 5431) amended by Act No. 5431 of Dec. 13

In full view of the above circumstances, since the former maternal blood donor, which was amended by the Nationality Act on December 13, 1997, should have been considered as a person who acquired the nationality of the Republic of Korea at the same time as the birth of the person who acquired the nationality of the Republic of Korea at the same time, the latter cannot be considered as a unconstitutional provision that adopted the rule of fatheral blood transfusion. Thus, in discussing the status of the latter under the nationality law of the person who acquired the nationality of the Republic of Korea as a person who acquired the nationality of the Republic of Korea at the same time as the latter under the supplementary provision of this case which was enacted to relieve this, the latter should be determined on the basis of the unconstitutionality of the provision of the former law at the point where the unconstitutionality of the provision of the former law was removed. Accordingly, it is reasonable to view the latter as a person who acquired the nationality of the Republic of Korea at the same time as the latter, even though

(3) Therefore, the Plaintiff’s birth under Article 11-2(1) of the Nationality Act or any other person who has both the nationality of the Republic of Korea and that of a foreign country under this Act shall be deemed to fall under “person with multiple nationalities,” and further, even if such legal interpretation does not comply with Article 16(1) of the Enforcement Decree of the current Nationality Act, which does not stipulate a person with multiple nationalities as a person with multiple nationalities, even if such legal interpretation does not stipulate a person with multiple nationalities as a person with multiple nationalities, it cannot be deemed that the above legal interpretation differs from the above provision of the Enforcement Decree without any authority as seen earlier.

Ultimately, even though the Plaintiff constitutes a person with multiple nationalities who is able to report the renunciation of nationality in accordance with Article 14 of the Nationality Act, the instant disposition taken on a different premise should be revoked as it is unlawful as it does not need further review on whether the Plaintiff violated the principle of protection of trust.

3. Conclusion

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

[Attachment]

Judges Choi Young-young (Presiding Judge)

1) However, the Constitutional Court rendered a provisional decision of inconsistency with the Constitution on August 31, 200 with respect to the supplementary provision of this case on the following grounds: (i) whether or not the age at the time of the enforcement of the new law becomes 10 years old due to the unconstitutional discrimination under the former Act is treated as another discrimination rather than a reasonable standard under the Constitution; and (ii) the above supplementary provision violates the principle of equality under Article 11(1) of the Constitution. However, where the Constitutional Court only declares a decision of unconstitutionality or a simple decision of inconsistency with the Constitution, the supplementary provision is no longer applicable from the time when the Constitutional Court makes a decision of unconstitutionality, and in this case, the supplementary provision of the former Act is no longer applicable from the time when the latter makes a decision of unconstitutionality or a decision of inconsistency with the Constitution. Therefore, there is a legal gap that makes it difficult for the Constitutional Court to accept the supplementary provision of the former Act by opening the path of acquisition of nationality to Korean children. Therefore, the supplementary provision does not conform with the Constitution but is applied provisionally until the new legislation.