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

The Minister of Justice

June 25, 2014

Seoul Administrative Court Decision 2013Guhap54861 Decided February 11, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On March 5, 2013, the defendant's disposition of rejecting the return of the return of nationality to the plaintiff shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasons why this court should explain are as follows, except for the addition of the judgment below on the argument that the defendant emphasizes in particular in this court, or which the defendant emphasizes in this court, the reasoning of the judgment of the court of first instance is identical to that of the court of first instance.

2. Judgment on the defendant's assertion

A. The defendant's assertion

The plaintiff is a foreigner and constitutes a person who acquired the nationality of the Republic of Korea in a astronomical manner through a special report on the acquisition of nationality for a mother-born under the supplementary provision of the Addenda to the Nationality Act. Article 3 of the Addenda to the current Nationality Act provides that "The amended provisions of Article 10 apply to a person who does not waive the foreign nationality because he falls under the proviso of Article 10 (2) before this Act enters into force," and therefore, the plaintiff is merely a person who has renounced the foreign nationality under Article 10 of the Nationality Act or a person who is subject to a non-exercise of the foreign nationality under Article 11-2 of the Nationality Act, and thus does not constitute a person who can report the renunciation of nationality as a part of the fulfillment of the obligation to nationality selection, since he is not a "person

B. Determination

1) Whether the Plaintiff constitutes a person who acquired nationality of the Republic of Korea in a astronomical manner

2) Article 2(1)1 of the Nationality Act amended by Act No. 5431 of Dec. 13, 1997 to eliminate the unconstitutionality of the above provision of the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997, Article 2(1)1 of the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997) provides that the person whose father or mother is a national of the Republic of Korea at the time of birth shall acquire the nationality of the Republic of Korea at the same time as the birth of the Republic of Korea and adopted the principle of parent support support support. In light of the newly established provisions of the latter part of the instant case, it is reasonable to view that the person who acquired the nationality of the Republic of Korea as a special person for mother support under the Addenda of the instant case, who actually acquired the nationality of the Republic of Korea at the same time as the birth of a foreign country and at the same time under the same time as the nationality of the Republic of Korea.

Therefore, the Plaintiff, not later than a person who acquired the nationality of the Republic of Korea in the future, should be deemed to fall under “a person who has both the nationality of the Republic of Korea and that of a foreign country under this Act” or “a person with multiple nationalities” under Article 11-2(1) of the Nationality Act.

2) Whether the principle of trust protection is applied or not

Even if the plaintiff did not acquire the nationality of the Republic of Korea at the same time as birth, and even if the plaintiff did not obtain the nationality of the Republic of Korea at the same time, it is reasonable to view that the disposition of this case where the plaintiff rejected the report of renunciation of nationality on the ground that the plaintiff does not constitute a person with multiple nationalities as stipulated in Article 11-2 (1) of

A) Relevant legal principles

In the amendment of Acts and subordinate statutes, the trust of the parties to the existence of the former Act and subordinate statutes is reasonable and reasonable, and if the public interest purpose to achieve new Acts and subordinate statutes is not justified due to extreme damage to the parties involved, the legislators shall take appropriate measures to protect the parties' trust by establishing transitional regulations, etc. It is not permissible to implement or apply the new Acts and subordinate statutes without such appropriate measures. This is because, on the one hand, if a citizen has formed a certain legal status or living relationship with a specific act corresponding to the relevant Acts and subordinate statutes, based on reasonable and justifiable trust that a certain statute will continue in the future, and if the State does not protect it at all, the people's trust in the legal order will collapse and have a big impact on the current act, and thus it violates the principle of protection of trust derived from the principle of the rule of law, which is the basic principle of the Constitution. To determine whether such principle of protection of trust is violated, on the other hand, the protection value of infringed interests, the degree of infringement, degree of damage caused, and new methods of infringement on trust, etc.

B) Determination on the instant case

(1) Article 16(1) of the former Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 22588, Dec. 31, 2010) provides for “any person who had both the nationality of the Republic of Korea and that of a foreign country before fully turning twenty years of age pursuant to this Act” in subparagraph 1, “any person who had acquired the nationality of the Republic of Korea pursuant to Article 3, 4, 8, or 9 of the Act or Article 7 of the Addenda to the amended Nationality Act (Act No. 5431) before fully turning twenty years of age, who reserved the waiver of the foreign nationality pursuant to the proviso to Article 10(2) of the Act.” However, Article 16(1) of the Enforcement Decree of the Nationality Act excluded any person who had acquired the foreign nationality from the nationality of Article 11-2(1) of the Act and Article 17(1) of the Addenda to the amended Nationality Act (Act No. 5431, Dec. 31, 2010).

(2) However, comprehensively considering the following circumstances acknowledged by the reasoning of the judgment of the court of first instance, including the overall purport of the arguments adopted by the plaintiff, i.e., ① the amendment of the former Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 22588, Dec. 31, 2010) to the extent that it was difficult for the plaintiff to clearly state the person who was subject to obligation of choosing nationality under Article 12 of the former Nationality Act (amended by Presidential Decree No. 20275, May 4, 2010) to have been deprived of his/her rights within the extent of 197, and thus, it was difficult for the plaintiff to appropriately state his/her rights to be deferred prior to the amendment of the amended Nationality Act to the extent that it would be difficult for the plaintiff to have been deprived of his/her rights as the person subject to obligation of choosing nationality under Article 12 of the former Nationality Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges’ aid (Presiding Judge) Transfering of permanent equipment

Note 1) The meaning of the abbreviationd language used below is the same as that of the first instance judgment.

2) Article 2(1) of the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997)

3) Article 7 (4) of the Addenda to the former Nationality Act (amended by Act No. 5431 of Dec. 13, 1997 and amended by Act No. 6523 of Dec. 19, 2001) provides that "a person who has reported pursuant to the provisions of paragraph (1) or (3) shall acquire the nationality of the Republic of Korea at the time of filing the report." According to the above language itself, it may be interpreted that a person who has acquired the nationality by special exception to mother does not acquire the nationality of the Republic of Korea at the time of birth.