2017Guhap5138 Revocation of Disposition of Refusal of Report of Desertion of Nationality

○ Kim

The Minister of Justice

July 21, 2017

September 22, 2017

1. On December 14, 2016, the Defendant’s disposition to revoke the return of the return of the return of the return of nationality to the Plaintiff.

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

The order is as set forth in the text.

1. Details of the disposition;

A. The Plaintiff was born on April 7, 1980 between parents of Indiania, U.S. and OOOOOOOOOO whose parents are Korean nationals.

B. On February 21, 2005, the Plaintiff started military service on March 2002, when he was enrolled at a university while living with his family members in Korea and living with his family members in Korea, and was on February 21, 2005.

다 . 원고는 2006 . 11 . 17 . 전○○와 혼인하였고 , 그 사이에서 김●●이 2008 . 5 . 8 . , 김■■이 2011 . 2 . 25 . 각 출생하였다 .

D. The Plaintiff automatically lost the nationality of the Republic of Korea under Article 12(2) of the former Nationality Act (amended by Act No. 10275, May 4, 2010; hereinafter “former Nationality Act”) on February 21, 2007, by failing to choose the nationality within two years after completing military service.

E. The Plaintiff reported the loss of nationality on June 23, 2009 and reported the domicile of overseas Koreans. On August 2009, the Plaintiff left the U.S. around August 2, 2009 and started the ○○○○○ University located in the ○○○ University located in the Ma○○○ University.

F. On August 8, 2011, pursuant to Article 2(1) of the former Nationality Act (amended by Act No. 14407, Dec. 20, 2016; hereinafter referred to as the "Revised Nationality Act"), the Plaintiff again acquired Korean nationality by reporting the re-acquisition of Korean nationality at the Seoul Immigration Office of the Ministry of Justice under Article 2(1).

G. In the course of being employed by the Army Research Institute in the United States, the Plaintiff received a report of renunciation of nationality to the Korean Army on August 21, 2015, which was employed by the Army Research Institute in the United States on December 7, 2015, and began to work as a contractual agent on December 7, 2015, and was employed as a full-time employee at the Army Research Institute in the United States around July 19, 2016.

H. On August 8, 2011, pursuant to Article 2 of the Addenda to the Nationality Act amended in 2010, the Defendant returned a declaration of renunciation of nationality to the Plaintiff on the ground that “A person who acquired the nationality of the Republic of Korea through a pledge not to exercise the nationality of the Republic of Korea and was not subject to the report of renunciation of nationality,” and on December 14, 2016, the Korean Ambassador General notified the Plaintiff of this on December 14, 201 (hereinafter “instant disposition”).

【Uncontentious facts, Gap 1 through 12, and 15 through 18, the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant’s grounds for the instant disposition are contrary to the explicit provisions of the amended Nationality Act. The period of restriction on the renunciation of nationality was abolished by the amendment of the Nationality Act, and the freedom of renunciation of nationality constitutes fundamental rights under the Constitution, but the instant disposition is limited to the Plaintiff’s private interest without any legal basis. Thus, the instant disposition ought to be revoked by its unconstitutionality and illegality.

(b) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

For the following reasons, a person who re-acquisitions the nationality of the Republic of Korea pursuant to Article 2(1) of the Addenda to the amended Nationality Act (No. 10275, May 4, 2010), as the Plaintiff, also becomes the subject of a report of renunciation of nationality pursuant to Article 14 of the amended Nationality Act. Thus, the instant disposition taken on a different premise is unconstitutional in violation of the principle of statutory reservation by the restriction on fundamental rights, and must be revoked as it is unlawful in violation of Article 14(1) of the amended Nationality Act.

1) Deserting or changing the nationality is included in the freedom of movement guaranteed by Article 14 of the Constitution (see, e.g., Constitutional Court Order 2005Hun-Ma739, Nov. 30, 2006). Accordingly, the principle of statutory reservation to restrict fundamental rights (see, e.g., Article 37(2) of the Constitution) requires that the Act be based on; Article 14(1) of the amended Nationality Act only requires that a person who has an address in a foreign country" in the preliminary military service under Article 8 of the Military Service Act (a person who falls under the main sentence of Article 12(2) of the amended Nationality Act) and a lineal ascendant who has been transferred to the preliminary military service under Article 14 of the same Act (a person who was born without the purpose of permanent residence in a foreign country and has been related to the performance of his duty of military service; a person who has not been subject to restriction on the period of departure under Article 28(1) of the Addenda of the Nationality Act.

2) Under the premise that the defendant may report the renunciation of nationality under Article 14 of the amended Nationality Act only with a person with multiple nationalities who has an obligation to nationality selection under Article 12 of the amended Nationality Act, the provisions of the main sentence of Article 12(1) of the amended Nationality Act concerning the duty to nationality selection shall not apply to a person re-acquisition of nationality under Article 4(6) of the Addenda of the Enforcement Decree of the same Act (Article 22588, December 31, 2010). Thus, the defendant's assertion that the re-acquisition of nationality under the Addenda cannot report the renunciation of nationality under Article 14(1) of the amended Nationality Act, but it is not reasonable for the following reasons.

A) Article 13(1) of the amended Nationality Act provides that "a person who has automatically lost the nationality of the Republic of Korea because he/she failed to waive the nationality of the Republic of Korea within the period of choosing the nationality pursuant to Article 2(1) of the Addenda (No. 10275, May 4, 2010)" provides that "a person who again acquired the nationality of the Republic of Korea shall be granted an opportunity to re-acquisition the nationality of the Republic of Korea by means of the renunciation method of foreign nationality or the non-exercise method of foreign nationality, as stipulated in Article 13(1) of the amended Nationality Act." Article 12(1) of the amended Nationality Act provides that "a person who again acquired the nationality of the Republic of Korea shall not be obliged to obtain the nationality of the Republic of Korea and a person who has selected the non-exercise of the foreign nationality of the Republic of Korea, as a person who has not renounced the nationality of the Republic of Korea, shall not be obliged to obtain the nationality of the Republic of Korea pursuant to Article 13(1) of the amended Nationality Act."

B) However, prior to the amendment of the Nationality Act, the former Nationality Act grants a person with multiple nationalities the duty to choose a national within a given period pursuant to Article 12 and uniformly causes the person with multiple nationalities to automatically lose the nationality of the Republic of Korea if he fails to perform it within the given period. The amended Nationality Act introduced an order to choose the nationality of the Republic of Korea by the defendant through the new establishment of Article 14-2, and explicitly deleted the proviso to Article 12(1) of the Nationality Act from among cases where a person with multiple nationalities fails to perform his obligation to choose the nationality within a given period provided for in Article 12(1), rather than automatically lose the nationality of the Republic of Korea. The amended Nationality Act explicitly deleted the proviso to Article 14(1) of the former Nationality Act from among cases where an order to choose the nationality of the Republic of Korea does not follow an order to choose the nationality of the Republic of Korea.

In full view of the above amendments, under the amended Nationality Act, it is anticipated that a person with multiple nationality may report his/her renunciation of nationality even after the period of choosing nationality under Article 12(1), and that a person with multiple nationality who has performed a non-exercise of a foreign nationality may also report his/her renunciation of nationality. Therefore, it cannot be deemed that a report on renunciation of nationality under Article 14(1) of the amended Nationality Act is premised on the obligation to nationality selection under Article 12.

3) Article 14-2(2) of the Nationality Act provides that where a person with multiple nationality, who has performed a non-exercise of a foreign nationality, commits an act evidently contrary to the purport of the vow, he/she may choose one nationality within six months. As a sanction for a violation of a certain obligation, he/she may impose an obligation of choosing the nationality on a person with multiple nationality who does not bear the obligation of choosing the nationality, such as a person again acquired the nationality pursuant to the Addenda as a sanction for a violation of a certain obligation. As such, it is difficult to accept as an interpretation that goes against equity to prevent a person with multiple nationality, who has violated a certain obligation, from filing a report of renunciation of nationality in accordance with an order of choosing the nationality of the defendant, and from filing a report of renunciation of nationality, which is a fundamental right of the Constitution

4) The meaning of a pledge not to exercise a foreign nationality is limited to the purport that Article 11-2 of the amended Nationality Act only treats a person with multiple nationality as a national of the Republic of Korea only in the application of the laws and regulations of the Republic of Korea, and it does not extend the meaning of not evading a foreigner’s right or duty as a national of the Republic of Korea. Thus, it is difficult to view that the fact that a person who re-acquisitions a pledge not to exercise a foreign nationality pursuant to the Addenda does not have a permanent departure from the Republic of Korea does not interfere with the report of renunciation of a foreign nationality of the Republic of Korea.

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per the disposition.

Justices Kim Yong-chul

Justices Kim Nam-nam

Judges Gangwon-gu

Site of separate sheet

Relevant statutes

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

Article 12 (Obligation to Nationality Nationality of Persons with Dual Nationality)

(1) The nationality of the Republic of Korea and that of a foreign country shall be both of the Republic of Korea before birth or otherwise before full twenty years of age under this Act.

A person who has become a dual national (hereinafter referred to as "a dual national") shall be subject to the age of 22 before full 22 years or after full 20 years of age.

A person who becomes a national of heavy nationality shall select one nationality pursuant to Articles 13 and 14 within two years from that time.

the first citizen service pursuant to Article 8 of the Military Service Act: Provided, That a person enlisted for the first citizen service pursuant to Article 8 of the same Act shall be subject to three months after enlistment

Within two years from the time one nationality is selected within one nationality or any of the subparagraphs of paragraph (3).

one nationality must be selected.

(2) A person who does not choose the nationality under paragraph (1) shall be between 22 years of age and 2 years of age under paragraph (1).

shall lose the nationality of a private country.

(3) Any person who was born while his lineal ascendant stays abroad without the purpose of permanent residence in a foreign country, shall perform military service.

In any of the following cases, a report of renouncement of nationality under Article 14 may be filed:

1. Where he/she is deemed to complete or have completed active duty, full-time reserve service, or supplemental service;

2. Where a person is exempted from military service; and

3. Where he is enlisted for the second citizen service;

Article 13 (Procedures for Selection of Nationality of the Republic of Korea)

(1) A dual national who intends to choose the nationality of the Republic of Korea within the period prescribed in Article 12 (1).

After the renunciation of nationality, it shall be reported to the Minister of Justice to select the nationality of the Republic of Korea.

(2) Requirements for the acceptance of reports under paragraph (1), procedures for reporting and other necessary matters shall be prescribed by Presidential Decree.

Article 14 (Procedures for Deserting Nationality of the Republic of Korea)

(1) A dual national who intends to choose a foreign nationality shall be appointed by the Minister of Justice within the period prescribed in Article 12 (1).

of the Republic of Korea may be reported to the effect that he/she deserts the nationality of the Republic of Korea: Provided, That the proviso or the same shall apply to Article 12 (1

any person who falls under paragraph (3) of this Article shall be entitled to report within such period or from the time such cause or event occurred.

(2).

(2) A person who has reported the renunciation of nationality under paragraph (1) shall lose the nationality of the Republic of Korea at the time of such report.

(3) Procedures for reporting under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree.

director Nationality Act (amended by Act No. 14407, Dec. 20, 2016)

Article 11-2 (Legal Status, etc. of Persons with Multiple Nationalities)

(1) A person who has both the nationality of the Republic of Korea and that of a foreign country under birth or other conditions prescribed by this Act (hereinafter referred to as "unclaimed").

A national of the Republic of Korea shall be treated only as a national of the Republic of Korea only in the application of the Acts and subordinate statutes of the Republic of Korea.

(2) Fields in which a person with multiple nationalities is unable to perform his/her duties under the status of foreign nationality.

If he/she intends to engage in business, he/she shall renounce foreign nationality.

(3) The heads of central administrative agencies shall enact or enforce Acts and subordinate statutes to treat dual nationality holders as foreigners.

any amendment shall be subject to prior consultation with the Minister of Justice.

Article 12 (Obligation to Nationality Nationality of Persons with Multiple Nationalities)

(1) A person who has acquired multiple nationalities before fully turning 20 years of age shall be reinstated before fully turning 22 years of age, and a person who has attained multiple nationalities after fully turning 20 years of age.

A person who has become a national shall select one nationality in accordance with Articles 13 and 14 within two years from that time.

in the Republic of Korea. However, pursuant to Article 10 (2), the Minister of Justice shall exercise a foreign nationality in the Republic of Korea.

A person with multiple nationalities who has vowed his intention not to do so shall be excluded.

(2) Notwithstanding the main sentence of paragraph (1), a person enlisted for the preliminary military service under Article 8 of the Military Service Act shall be enlisted for the military service division.

2. From the time one nationality is selected within three months or when he/she falls under any subparagraph of paragraph (3).

one nationality shall be selected within one year: Provided, That the choice of nationality of the Republic of Korea under Article 13 shall be made;

Where it is intended to do so, it may be done even before falling under any of the subparagraphs of paragraph (3).

(3) Any person who was born while his lineal ascendant stays abroad without the purpose of permanent residence in a foreign country, shall perform military service.

A report of renunciation of nationality under Article 14 shall be filed only in any of the following cases:

of the corporation.

1. Where he/she is deemed to complete or have completed active duty, full-time reserve service, or supplemental service;

2. Where he is enlisted in the wartime labor service;

3. Where a person is exempted from military service; and

Article 13 (Procedures for Selection of Nationality of the Republic of Korea)

(1) Persons with multiple nationalities who intend to choose the nationality of the Republic of Korea within the period prescribed by the main sentence of Article 12 (1)

Waiver of foreign nationality or exercise of foreign nationality in the Republic of Korea, as determined by the Minister of Justice.

(1) A statement to the Minister of Justice that he/she will choose the nationality of the Republic of Korea

of the corporation.

(2) Persons with multiple nationalities who intend to choose the nationality of the Republic of Korea after the period prescribed in the main sentence of Article 12 (1)

Only if he renounces his foreign nationality, he may report to the Minister of Justice that he selects the Republic of Korea nationality.

(c) In case of Article 12 (3) 1, two years from the time when the case falls under that case;

within the manner prescribed in paragraph 1, it may be reported that the nationality of the Republic of Korea is selected.

(3) Notwithstanding paragraph (1) and the proviso to paragraph (2), the mother shall have his/her child acquire foreign nationality at the time of birth.

For purposes, a person who is deemed to have been staying in a foreign country shall only renounce foreign nationality.

It can be reported that Korean nationality will be selected.

(4) Requirements for the acceptance (acceptance) of reports, procedures for reporting and other necessary matters under paragraphs (1) through (3).

Matters shall be prescribed by Presidential Decree.

Article 14 (Requirements and Procedures for Deserting Nationality of the Republic of Korea)

(1) A person with multiple nationalities who intends to choose a foreign nationality shall have jurisdiction over his/her domicile in a foreign country.

The Minister of Justice may report to the Minister of Justice through the heads of diplomatic missions abroad that he/she will desert the nationality of the Republic of

Provided, That a person who falls under the main sentence of Article 12 (2) or paragraph (3) of the same Article shall be within the period or

A report may be filed only when any cause has occurred.

(2) A person who has reported renunciation of nationality under paragraph (1) shall be a Korean national when the Minister of Justice receives the report.

(4) A person shall lose his/her assets.

(3) The requirements and procedures for reporting and acceptance under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree.

Article 14-2 (Orders to Nationality Nationality for Persons with Multiple Nationalities)

(1) The Minister of Justice shall choose nationality as a person with multiple nationalities within a period prescribed by Article 12 (1) or (2).

An order to choose one nationality within one year from among those who do not have such nationality.

(2) The Minister of Justice shall grant multiple nationalities pursuant to Article 10 (2), 13 (1), or the proviso to paragraph (2) of the same Article.

A person who has vowed his intention not to exercise his foreign nationality in the Republic of Korea substantially reflects such intention.

any act may be ordered to choose one nationality within six months.

(3) Where a person in receipt of an order to choose nationality under paragraph (1) or (2) intends to select the nationality of the Republic of Korea, a foreign

shall have waived nationality.

(4) A person who fails to comply with an order to choose the nationality under paragraph (1) or (2) even though he/she has received such order.

shall lose the nationality of the Republic of Korea at the time of time.

(5) Procedures for selecting nationality under paragraphs (1) and (2) and the types of acts evidently violating the vow under paragraph (2).

The Presidential Decree shall be prescribed.

The Addenda No. 10275, May 4, 2010

Article 2 (Special Cases concerning Persons, etc. who have Lost Nationality of the Republic of Korea)

(1) Any person who has lost the nationality of the Republic of Korea under the former provisions of Article 12 (2) shall have his/her domicile in

foreign nationality within two years from the date of promulgation of this Act, or a foreign country in the Republic of Korea

state of the Republic of Korea by making a declaration to the Minister of Justice under an vowing that it will not exercise

a man shall be limited to a person who falls under Article 12 (3) 1.

Enforcement Decree of the Nationality Act (Amended by Presidential Decree No. 28255, Aug. 29, 2017)

Article 16 (Definition, etc. of Persons with Multiple Nationalities)

(1) Having both the nationality of the Republic of Korea and that of a foreign country under other conditions prescribed by this Act in Article 11-2 (1) of the Act.

Any person who has become a person shall be any of the following persons:

1. A person who has made a pledge not to exercise foreign nationality pursuant to Article 10 (2) of the Act;

2. Within six months after a Korean national has acquired a foreign nationality under Article 15 (2) of the Act;

A person who reports to the Minister of Justice his/her intention to retain Korean nationality.

3. Foreign nationality to the Minister of Justice pursuant to Article 2 (1) of the Addenda to the partially amended Nationality Act (Act No. 10275).

Re-acquisition of the nationality of the Republic of Korea after non-exercise of the pledge, or re-acquisition of the foreign nationality under paragraph (2) of the same Article.

A person who has made a pledge not to exercise a foreign nationality after acquisition.

Addenda No. 22588, December 31, 2010

Article 4 (Procedures, etc. for Reporting Re-Attainment of Nationality)

(1) Re-acquisition of Korean nationality pursuant to Article 2 (1) of the Addenda to the partially amended Nationality Act (Act No. 10275).

A person who intends to renounces foreign nationality within the period prescribed in Article 2 (1) of the Addenda to the same Act.

Preparation of a report on acquisition of nationality prescribed by Ordinance of the Ministry of Justice, after completing the vehicle or having not exercised a foreign nationality;

shall be submitted to the head of office, etc.

(2) A person who re-acquisitions foreign nationality pursuant to Article 2 (2) of the Addenda to the partially amended Nationality Act (Act No. 10275).

the head of the office, etc. shall submit a written pledge not to exercise foreign nationality and attached documents.

of this section.

(3) The head of an office, etc. shall make a report on acquisition of nationality submitted after a pledge not to exercise a foreign nationality)

When a report, etc. is received pursuant to paragraph (2), it shall be sent to the Minister of Justice without delay.

(c)

(4) The Minister of Justice or the head of the office, etc. shall accept reports on acquisition of nationality.

notice of such fact in the Official Gazette to the principal and the head of the family register office;

section 32 of this title.

(5) Procedures for waiver of a foreign nationality or a pledge not to exercise a foreign nationality under paragraphs (1) and (2), and the substitute therefor.

Article 11 shall apply mutatis mutandis to a certificate issued.

(6) Article 12 (1) of the Act shall apply to a person who has become a person with multiple nationalities after completing a vow under paragraphs (1) and (2).

The provisions of the text shall not apply to the end.