The meaning of a decision of limited unconstitutionality, and whether a request for adjudication seeking limited unconstitutionality is permissible pursuant to Article 41(1) of the Constitutional Court Act (negative)

Article 41 (1) of the Constitutional Court Act

Supreme Court Decision 95Da14 Decided April 27, 2001 (Gong2001Sang, 1220) Supreme Court Decision 2012Du299 Decided March 28, 2013 (Gong2013Sang, 779)

Applicant (Law Firm Woo, Attorneys Shin Si-hwan et al., Counsel for the plaintiff-appellant)

The motion for adjudication on the constitutionality of the instant case is dismissed.

1. Legal provisions applicable to the application of this case

Article 1 of the Act on the Registration, etc. of Family Relationship, which is the legal provision of the Act on the Registration, etc. of Family Relationship (hereinafter “Family Relationship Act”), provides that “The purpose of this Act is to prescribe matters concerning the registration of establishment and changes in family relations, such as the birth, marriage, death, etc. of citizens, and matters concerning their certification thereof,” and Article 9(2)4 of the same Act provides that “where a person to be recorded as a family as a citizen of the Republic of Korea (hereinafter “foreigner”), is a person who is not a citizen of the Republic of Korea (hereinafter “foreigner”), the name, gender, date of birth, nationality, and alien registration number (referring to the domestic domicile report number, etc. under the Supreme Court Regulations, in the case of

2. Summary of the applicant’s assertion

For the following reasons, Article 1 (B) of the instant legal provisions is in violation of the Constitution, insofar as it is necessary to verify the family relations of the nationals of the Republic of Korea, all foreign families shall not be recorded in the family relations register, and it does not include foreign children born before acquiring the nationality of the Republic of Korea in Article 9 (2) 4.

A. Although the Family Relation Registration Act comprehensively provides for the registration, it is narrow interpretation that a person who is a citizen of the Republic of Korea and a person in a family relationship should be subject to registration only if the applicant’s children are foreigners, it infringes on the legal interest that can easily prove the applicant’s family relationship and infringes on the applicant’s right to equality under Article 11(1) of the Constitution.

B. The reason for the amendment of Article 9(2)4 of the instant legal provision is to resolve the inconvenience that is to prove the Korean family relationship of a foreign spouse married to a Korean national or a foreign family member prior to the acquisition of nationality among the foreign spouse married to a Korean national or an international adoption or recognized child, and such inconvenience arises equally among the foreign children born prior to the acquisition of Korean nationality, such as the applicant, and thus, it is to discriminate against the applicant and the foreign children born prior to the acquisition of Korean nationality without reasonable grounds.

3. Determination as to the legitimacy of the request for an adjudication on the unconstitutionality of this case

The Constitutional Court’s decision does not bring about the same result as the abolition of all or part of the law or provisions which are the object of constitutional complaint by rendering a decision of unconstitutionality as to all or part of the law or provisions which are the object of constitutional complaint, but, in the case of the so-called limited unconstitutional decision that only a certain interpretation is declared unconstitutional, the law or provisions of the law continue to exist without any difference in the language and text thereof, notwithstanding the decision of the Constitutional Court, so such limited unconstitutional decision is a legal interpretation that provides interpretation standards for the meaning and contents of the law or the scope of its application. The request for adjudication of unconstitutionality of the law under Article 41(1) of the Constitutional Court Act is a request to the Constitutional Court for adjudication as to whether the law is unconstitutional, and it is not a request for adjudication as to whether the “legal interpretation” enacted by the National Assembly is unconstitutional. Accordingly, the request for adjudication on limited unconstitutionality cannot be permitted (see Supreme Court Decision 200Du3298, Apr. 29, 201).

The applicant’s application for adjudication on the unconstitutionality of the instant legal provision does not claim the unconstitutionality of the instant legal provision, but does not mean that “a person who shall record as a family member is not a national of the Republic of Korea” as referred to in the instant legal provision should not be construed as including a foreign child born before acquiring the nationality of the Republic of Korea. The authority to interpret and apply such statutes is exclusively belonging to the court, and the “legal” is not a case subject to the premise of judgment. Even if the Constitutional Court’s decision on the unconstitutionality of a limited unconstitutionality exists, the application for adjudication on the constitutionality of the instant legal provision based on the instant

4. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the bench that the motion for adjudication on the constitutionality of this case is unlawful and thus, it is so decided as per Disposition.

Justices Cho Jae-chul (Presiding Justice)