Whether a person who acquired the nationality of the Republic of Korea pursuant to Article 7 (1) 1 of the Addenda of the Nationality Act (amended by December 13, 1997) and was eligible to choose the nationality as a dual national pursuant to Article 12 (1) of the former Nationality Act before the amendment of the Nationality Act in 2010 is eligible for choosing the nationality within three months from the time when he was transferred to the first citizen service pursuant to Article 12 of the Nationality Act (affirmative)

Article 2 subparag. 1 of the former Nationality Act (wholly amended by Act No. 5431, Dec. 13, 1997); Article 2(1)1 of the former Nationality Act (Amended by Act No. 8892, Mar. 14, 2008); Articles 10 and 12 of the former Nationality Act (Amended by Act No. 10275, May 4, 201; hereinafter referred to as the "former Nationality Act"); Articles 10(1) and (2), 11-2(1) and 12 of the Nationality Act; Article 7(1)1 of the Addenda (Amended by Presidential Decree No. 1065, Dec. 13, 197); Article 3 of the former Enforcement Decree of the Nationality Act (Amended by Act No. 10581, Dec. 13, 2010); Article 16(1)1 of the former Nationality Act (Amended by Presidential Decree No. 2151, Dec. 16, 20197>

Article 7(1)1 of the Addenda of the Nationality Act (wholly amended by Act No. 5431, Dec. 13, 1997) provides that a person who acquired the nationality of the Republic of Korea from a person who acquired the nationality of the Republic of Korea under Article 7(1)1 of the Addenda of the Nationality Act (wholly amended by Act No. 5431, Dec. 13, 1997) may obtain the nationality of the Republic of Korea from a person who was born with the mother of a national of the Republic of Korea before the enforcement of the former Nationality Act (wholly amended by Act No. 5431, Dec. 13, 1997) with a reflective view that the former Nationality Act (wholly amended by Act No. 5431, Dec. 13, 1997) goes against the principle of gender equality. In light of the legislative purpose and the amendment of the Nationality Act, it is difficult to view that a person who acquired the nationality of the Republic of Korea from a birth and a status equivalent to a person born in the Republic of Korea.

Article 3 of the Addenda to the Nationality Act (amended by Act No. 10, May 4, 2010) provides that “The amended provisions of Article 10 do not apply to those who did not waive foreign nationality because they fall under the proviso of Article 10(2) prior to the enforcement of this Act.” However, Article 5 of the Addenda to the Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 10, Dec. 31, 2010) provides that “A person for whom the obligation to waive foreign nationality is reserved may waive foreign nationality or make a statement not to exercise foreign nationality in accordance with Article 10 of the Act within the previous period of reservation.” In addition, the purport of the aforementioned Addenda does not stipulate that the amended Nationality Act of 2010, unlike the former Nationality Act, does not stipulate that the person for whom the obligation to waive foreign nationality was reserved pursuant to the former Nationality Act shall not be deemed to be a person for whom the obligation to waive foreign nationality was automatically deprived during the period of reservation under the former Nationality Act, and thus, it is difficult to interpret the former Nationality Act only to ensure that one does not lose foreign nationality.

Although Article 16 (1) of the Enforcement Decree of the Nationality Act does not include a person who has a parent-child relationship in the matters that each subparagraph of Article 16 (1) of the Enforcement Decree of the Nationality Act moves to a person who has multiple nationality, Article 11-2 of the Nationality Act only provides that "a person who has both the nationality of the Republic of Korea and that of a foreign country pursuant to this Act" with respect to a person with multiple nationality is "a person who has both the nationality of the Republic of Korea and that of a foreign country pursuant to this Act" and does not delegate the scope of a person with multiple nationality to the Presidential Decree, the person with multiple nationality cannot be deemed

Article 2 subparagraph 1 of the former Nationality Act (wholly amended by Act No. 5431, Dec. 13, 1997); Article 2 (1) 1 of the former Nationality Act (Amended by Act No. 8892, Mar. 14, 2008); Articles 10 and 12 of the former Nationality Act (Amended by Act No. 10275, May 4, 2010); Articles 10 (1) and (2), 11-2 (1), and 12 of the Nationality Act; Article 7 (1) 1 of the Addenda (Amended by Act No. 5431, Dec. 13, 1997); Article 3 of the Addenda (Amended by Presidential Decree No. 10271, Dec. 13, 2010); Article 10 (1) 1 of the former Nationality Act (Amended by Presidential Decree No. 12513, Dec. 13, 2010); Article 16 (1) of the former Enforcement Decree of the Nationality Act (Amended by Presidential Decree No.

Plaintiff (Law Firm No. Gong & Lee, Attorneys Go-jin et al., Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul High Court Decision 2014Nu45828 decided July 9, 2014

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. (1) Unlike Article 2(1)1 of the Nationality Act, amended by Act No. 5431, Dec. 13, 1997; Article 2(1)1 of the former Nationality Act provides that “a person who, at the time of birth, is a national of the Republic of Korea at the time of birth” as a national of the Republic of Korea, Article 2 subparag. 1 of the former Nationality Act provides that “a person who, at the time of birth, is a national of the Republic of Korea” shall acquire the nationality of the Republic of Korea at the time of birth. Article 7(1)1 of the Addenda (amended by Act No. 5431, Dec. 13, 1997) provides that “a person who, for ten years prior to the enforcement of this Act, was born as a mother of the Republic of Korea and is a national of the Republic of Korea at the time of the report by the mother, may obtain the nationality of the Republic of Korea by filing a report with the Minister of Justice (hereinafter “the Addenda provision of this case”).

(2) Article 10 of the former Nationality Act (amended by Act No. 10275, May 4, 2010; hereinafter “former Nationality Act”) provides that a foreigner who has acquired the nationality of the Republic of Korea and has acquired the nationality of the Republic of Korea must renounce the foreign nationality within six months from the date of acquisition of the nationality of the Republic of Korea (Paragraph (1) and that a person who fails to comply with Paragraph (1) shall, in principle, lose the nationality of the Republic of Korea at the expiration of the period; however, the same shall not apply to a person who is difficult to implement Paragraph (1) despite his/her own intent and is prescribed by Presidential Decree (Paragraph (2)). According to delegation, Article 13(1)1 of the former Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 22588, Dec. 31, 2010; hereinafter “former Enforcement Decree of the Nationality Act”) provides that a person who is a minor under the Civil Act of the Republic of Korea at the time of acquisition of the nationality of the Republic of the Republic of Korea has been reserved.

In addition, Article 12 of the former Nationality Act provides that “A foreigner who has acquired the nationality of the Republic of Korea prior to birth or otherwise reaching the age of 20 as one of the dual nationals.” Article 16(1)1 of the former Enforcement Decree of the Nationality Act provides that “A foreigner who has acquired the nationality of the Republic of Korea pursuant to Articles 3, 4, 8, and 9 of the Act, or the Addenda of this case before reaching the age of 20 and reserved the renunciation of his foreign nationality pursuant to the proviso to Article 10(2) of the Act.” Article 12 of the former Nationality Act provides that “A dual national shall select one nationality pursuant to Articles 13 and 14 before he reaches the age of 22 (paragraph (1)), but a person who has been transferred to the first citizen service pursuant to Article 8 of the Military Service Act shall either be selected within three months from the time he was transferred to active service or within three months from the time he was transferred to full-time reserve service (Article 23(1) of the former Nationality Act).

(3) Article 10(1) of the Nationality Act (amended by Act No. 10275, May 4, 2010) provides that a foreigner who has acquired the nationality of the Republic of Korea and has the nationality of the Republic of Korea shall waive the said foreign nationality within one year from the date of acquisition of the nationality of the Republic of Korea (Article 10(1)). Unlike the fact that Article 10(2) of the former Nationality Act provides that the obligation to renounce the nationality of the Republic of Korea shall be reserved in certain cases, such as a minor, etc. at the time of acquisition of the nationality of the Republic of Korea prior to the amendment, the amended Nationality Act provides that the Minister of Justice shall either waives the nationality of the Republic of Korea within one year from the date of acquisition of the nationality of the Republic of Korea or make a vow to the effect that the foreigner will not exercise the nationality of the Republic of Korea within one year from the date of acquisition of the nationality of the Republic

In addition, Article 11-2 (1) of the Nationality Act provides that "any person who has obtained birth or other nationality of the Republic of Korea together with that of a foreign country pursuant to this Act" shall be deemed a person with multiple nationality. Article 16 (1) of the Enforcement Decree of the Nationality Act amended by Presidential Decree No. 22588 on December 31, 2010 provides that "any person who has made a statement not to exercise foreign nationality pursuant to Article 10 (2) of the Act (Article 10 (2) of the Act)", "any person who has reported his intention to hold foreign nationality to the Minister of Justice within six months after he acquired foreign nationality pursuant to Article 15 (2) of the Act (Article 15 (2) of the Act of the Republic of Korea)", "any person who has not acquired foreign nationality with no foreign nationality to the Minister of Justice pursuant to Article 2 (1) of the Addenda to the amended Nationality Act (Act No. 10275)", "any person with multiple nationality who again acquired foreign nationality pursuant to Article 16 (2) of the former Nationality Act.

In addition, Article 12 of the Nationality Act provides that a person who has acquired multiple nationalities before fully turning 20 (excluding a person with multiple nationalities who has vowed non-exercise of a foreign nationality) shall choose one nationality within a given period pursuant to Articles 13 and 14 (Article 1). Article 8 of the Military Service Act provides that a person who has been transferred to the first citizen service pursuant to Article 12(2) of the former Nationality Act shall choose one nationality within three months from the time he was transferred to the first citizen service or within two years from the time he falls under any of the subparagraphs of Article 12(2) of the former Nationality Act.

Meanwhile, Article 3 of the Addenda to the Nationality Act (amended by Act No. 10, May 4, 2010) provides, “The provisions of Article 10 shall also apply to those who have not renounced foreign nationality because they fall under the proviso of Article 10(2) before this Act enters into force,” and Article 5 of the Addenda to the Enforcement Decree of the Nationality Act (amended by Presidential Decree, Dec. 31, 2010), provides, “A person for whom the obligation to renounce foreign nationality has been reserved may waive foreign nationality or make a pledge not to exercise foreign nationality in accordance with Article 10 of the Act within the previous period of reservation.”

B. In light of the language, structure, history, etc. of the pertinent provision, a person of the mother special case, who acquired the nationality of the Republic of Korea pursuant to Article 12(1) of the former Nationality Act prior to the amendment of the Nationality Act in 2010, could have been selected as a dual national under Article 12(1) of the former Nationality Act, constitutes a “person with multiple nationality” under Article 11-2(1) of the Nationality Act even after the amendment of the Nationality Act in 2010 on the following grounds, who has a status corresponding to “a person who has both the nationality of the Republic of Korea and that of a foreign country by birth,” and therefore, it should be deemed that a person can choose the nationality within three months from the time of enlistment in the first citizen service pursuant to

① In light of the reflective view that the former Nationality Act (amended by Act No. 5431, Dec. 13, 1997) which took a side-divology (amended by Act No. 5431, Dec. 13, 1997) that the former Nationality Act (amended by Act No. 5431, Dec. 13, 1997) goes against the principle of gender equality, the former Nationality Act adopted the parent-divation doctrine. Thus, prior to its enforcement, a person who was born with a national of the Republic of Korea can obtain the nationality of the Republic of Korea with certain requirements and procedures. In light of the legislative purpose of the supplementary provision of this case and the developments leading up to the amendment of the Nationality Act, it is difficult to see that the mother-divant also has a status equivalent to “a person who acquired the nationality of the Republic of Korea by birth” as provided in Article 11-2(1) of the Nationality Act.

② Article 3 of the Addenda to the Nationality Act (amended by Act No. 10, May 4, 2010) provides that “The provisions of Article 10 do not apply to those who did not waive the foreign nationality because they fall under the proviso of Article 10 (2) prior to the enforcement of this Act.” However, Article 5 of the Addenda to the Enforcement Decree of the Nationality Act (amended by Presidential Decree No. 10, Dec. 31, 2010) provides that “A person for whom the obligation to waive the foreign nationality is reserved may waive the foreign nationality or make a statement not to exercise the foreign nationality in accordance with Article 10 of the Act within the period for which the former reservation was made.” In addition, considering that Article 3 of the Addenda to the Nationality Act (amended by Act No. 2010, May 4, 2010) does not provide for the reservation of the obligation to waive the foreign nationality unlike the former Nationality Act, so it is difficult to interpret the person for whom the obligation to waive the foreign nationality was postponed under the former Nationality Act to ensure that person does not lose the obligation under Article 1 of the former Nationality Act.

③ Although Article 16 (1) of the Enforcement Decree of the Nationality Act does not include a person with multiple nationalities in the matters that each subparagraph of Article 16 (1) of the same Decree moves to a person with multiple nationalities, Article 11-2 of the Nationality Act only provides that “a person who has born or otherwise acquired both the nationality of the Republic of Korea and that of a foreign country in accordance with this Act” shall be deemed to be “a person who has acquired both the nationality of the Republic of Korea and that of a foreign country in accordance with the Presidential Decree,” and does not provide for the scope of a person with multiple nationalities, the person with multiple nationalities cannot be deemed to be excluded from the scope of

C. According to the reasoning of the judgment below, the court below determined that the disposition of this case was unlawful on the premise that the plaintiff did not constitute a multiple nationality holder under Article 11-2 (1) of the Nationality Act, on the ground that the plaintiff did not constitute a multiple nationality holder, on the ground that it is reasonable to view that the person who acquired the nationality of the Republic of Korea as a special person for the mother under the provision of the Addenda of this case, who acquired the nationality of the Republic of Korea, was born at the same time in substance in accordance with the principle of parent support.

D. Examining the reasoning of the judgment below in light of the aforementioned legal principles, the judgment of the court below is partially insufficient, but the conclusion that the disposition of this case was unlawful on the ground that the Plaintiff, a person with special exception to mother, constitutes “person with multiple nationalities” as prescribed by Article 11-2(1) of the Nationality Act. In so doing, contrary to what is alleged in the grounds of appeal,

2. Regarding ground of appeal No. 2

This part of the Defendant’s ground of appeal is that the disposition of this case was made pursuant to the current Nationality Act and cannot be deemed to violate the principle of protection of trust. However, the judgment of the court below that the disposition of this case was unlawful in violation of the principle of protection of trust is that there is a misapprehension of the legal principles concerning the interpretation and application

Even though the lower court’s judgment on the violation of the principle of protection of trust was erroneous in its determination, it is justifiable in its conclusion that the Plaintiff, who is a multiple nationality holder, may waive the nationality of the Republic of Korea within the period stipulated under Article 12 of the Nationality Act, and thus, the lower court’s determination that the disposition of this case, which rejected the Plaintiff’s report of renunciation of nationality, was unlawful. Therefore, without examining the legitimacy of the grounds of appeal on this part of the grounds of appeal, did not err by misapprehending the legal doctrine on the interpretation and application of the principle of protection of trust, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok (Presiding Justice)