The case holding that even though the father who was de facto in a de facto marital relationship and the son who was born between her mother and her mother who had been registered in her family register and resided in Korea, she is not liable for military service.

In the case of a de facto baby born between the father and Korean mother who was born in a de facto marital relationship, at the time of birth, his father was alive as a national of the Republic of Korea who was not a national of the Republic of Korea, and pursuant to Article 1, subparagraph 1, of the Nationality Act, Article 1, subparagraph 1, of the complete Nationality Act, since the father at the time of birth became a citizen of the Republic of Korea, his child's nationality is not the Republic of Korea, but the mother's family register, and even if he had been registered in his family register and had been residing in Korea, he is not a person

Articles 1 and 3 of the Military Service Act, Article 2 of the Nationality Act

[Judgment of the court below]

The director of the Incheon Gyeonggi Military Manpower Office

June 27, 2007

1. On April 5, 2007, the Defendant’s enlistment disposition in active duty service, named the Plaintiff as Park △△△△ (resident registration number omitted), shall be revoked.

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 October 6, 1979, the Plaintiff was born between Nonparty 1 and Nonparty 2 of Korean nationality, who was in a de facto marital relationship with each other in Korea.

B. On November 7, 1979, Nonparty 1 entered the Plaintiff in the family register of the Masan School Association with the name of “Plaintiff (Korean characters and Alphababa omitted)”. After that, Nonparty 2, on December 3, 1985, took the Plaintiff on a temporary basis with Nonparty 1 and the name of “△△△ (resident registration number omitted)” and entered the Plaintiff in the name of “△△ (resident registration number omitted)” without leaving the Plaintiff in public space.

C. On April 5, 2007, the Defendant rendered the instant disposition ordering the Plaintiff to enlist in active duty service by referring the Plaintiff as Park △△△△ (resident registration number omitted).

[Reasons for Recognition] Evidence Nos. 2-1, 3, 3-7, 12, 12-1, 20-1, 21-1, 22-1, and 22-2, and all purport of oral argument

2. Determination of legality of disposition

A. The plaintiff's assertion

The plaintiff acquired the nationality of the Republic of Korea and the Republic of Korea as the father was not a national of the Republic of Korea at the time of birth. On the contrary, the disposition of this case on the premise that the plaintiff is a national of the Republic of Korea is unlawful.

B. Relevant statutes

/ Military Service Act

Article 1 (Purpose)

The purpose of this Act is to prescribe matters concerning the military service of Korean nationals.

Article 3 (Duties of Military Service)

(1) A male who is a national of the Republic of Korea shall faithfully perform his military service, as prescribed by the Constitution and this Act. A female may perform his active service upon volunteering only.

4. Nationality Act (amended by Act No. 5431 of Dec. 13, 1997)

Article 2

Any of the following persons shall be a national of the Republic of Korea:

1. A person who is a national of the Republic of Korea at birth;

2. A national of the Republic of Korea at the time of death if the father died before birth;

3. A person whose father is not clear or whose mother is a national of the Republic of Korea if there is no nationality;

4. A person who is born in the Republic of Korea, where both of parents are not clear or have no nationality.

A child found in the Republic of Korea shall be presumed born in the Republic of Korea.

(c) Markets:

According to the provisions of Articles 1 and 3(1) of the Military Service Act, the subjects of military service are limited to male citizens of the Republic of Korea.

Therefore, Article 2 (i) of the Nationality Act (amended by Act No. 5431 of Dec. 13, 1997; hereinafter the same) provides that, with respect to whether the Plaintiff is a national of the Republic of Korea, a person who is a national of the Republic of Korea at the time of birth (Article 2 (ii) where the father died before birth, a national of the Republic of Korea at the time of his death (Article 2 (2)), a person who was a national of the Republic of Korea at the time of his death (Article 2 (iii) where the father has no nationality, a person who is a national of the Republic of Korea (Article 3) and a person who was born (Article 4) in the Republic of Korea if the father is both unclear

As seen earlier, at the time of the Plaintiff’s birth, the Plaintiff was alive as a citizen of the Republic of Korea who was not a citizen of the Republic of Korea, and even according to Article 1 subparag. 1 of the complete Nationality Act, if the father is a citizen of the Republic of Korea after birth, the Plaintiff’s nationality is not the Republic of Korea, but the mother’s family register and the resident registration register of Nonparty 2, who is a national of the Republic of Korea, and it does not change even if the Plaintiff had resided in Korea, as alleged by the Defendant.

The defendant asserts that the plaintiff cannot be deemed to have lost the nationality of the Republic of Korea on the premise that the plaintiff is a dual national. However, there is no evidence to deem that the plaintiff acquired the nationality of the Republic of Korea at the same time as the plaintiff was born and there is no other evidence to deem that the plaintiff was a dual national. Thus, the defendant's argument premised that the plaintiff is a dual national

Therefore, the disposition of this case premised on the Plaintiff’s being a national of the Republic of Korea is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Cho Jae-won (Presiding Judge) Kim Jong-chul