[1] Whether a child born to a national of the Republic of Korea has "the right to be registered for birth" as soon as he/she was born (affirmative)

[2] Whether Article 57 (2) of the Act on the Registration, etc. of Family Relationship applies to a case where a foreign mother’s personal information cannot be provided with documents necessary for the report of birth for reasons not attributable to himself/herself, or where a mother’s unknown whereabouts or his/her mother does not cooperate in the issuance of documents necessary for the report of birth without justifiable grounds (affirmative)

[1] A person whose father or mother is a national of the Republic of Korea at the time of birth and at the same time acquires nationality of the Republic of Korea (Article 2(1) of the Nationality Act). If the same result takes place when the State does not receive the report of birth for a child born as a national of the Republic of Korea, or when the procedure is complicated and long time, it infringes on the dignity and value of human beings, the right to pursue happiness, and the right to personality of a child (Article 10 of the Constitution of the Republic of Korea) by depriving the child of an opportunity to obtain social status (Article 10 of the Constitution of the Republic of Korea). In order to use the State’s system in modern society, a person shall have the social status such as resident registration, and the acquisition of a social status starts from the report of birth for an individual. A child born as a national of the Republic of Korea has the right to obtain birth immediately after his/her birth. Such right is a fundamental right to be recognized as a human being in front of the law, and thus it cannot be restricted or infringed by law (Article 37(2) of the Constitution).

[2] Examining the purport and legislative history of Article 57(2) of the Act on the Registration, etc. of Family Relationship, the legislative structure of the relevant statutes, and the importance of the right to register the birth of a child, Article 57(2) of the Act on the Registration, etc. of Family Relationship applies to cases where the mother’s personal information, which is the entries of the report under Article 44(2) of the same Act, is unknown even though Article 57(1) of the same Act, is allowed to report the birth of a child by himself/herself, with the confirmation of the father’s basic domicile or family court having jurisdiction over his/her domicile, in cases where the mother’s personal information cannot be identified, and where the mother’s personal information is a foreigner’s personal information cannot be provided with the necessary documents for the report of birth due to a cause not attributable to himself/herself, or where the mother’s whereabouts or mother’s whereabouts does not cooperate with the issuance of necessary documents for the report of birth without any justifiable reason.

[1] Articles 10 and 37(2) of the Constitution of the Republic of Korea; Article 2(1) of the Nationality Act / [2] Articles 44(2) and 57 of the Act on the Registration, etc. of Family Relationship

[1] Supreme Court en banc Decision 2016Meu2510 Decided October 23, 2019 (Gong2019Ha, 2205)

Applicant (Attorney Lee Jae-il, Counsel for plaintiff-appellant)

Principal of the case

Cheongju District Court Order 2019B24 dated March 3, 2020

The order of the court below is reversed and the case is remanded to Cheongju District Court.

The grounds of reappeal are examined.

1. Case history

A. The applicant is a national of the Republic of Korea (hereinafter “the Republic of Korea’s nationality obtained permission for naturalization on June 5, 2013”). From August 2013, the applicant was in a de facto marital relationship with a person (in English and Chinese name omitted) other than the applicant of the People’s Republic of China (hereinafter “China”), and among them, the principal of the case (the name omitted) in the hospital (the name omitted) located in the Cheongju-si (the name omitted) Hospital located in the Cheongju-si (the name omitted).

B. The applicant and the applicant filed a report of birth at the competent community service center by attaching the certificate of birth of the principal of the case immediately. However, the competent community service center, because the principal of the case was a child born out of wedlock, the mother (the mother) shall file a report of birth; if the mother is a foreigner, the father shall file a report of birth at an overseas diplomatic mission of the country of nationality; if the father intends to file a report of birth, a certificate of marital relationship of the mother, a document certifying that he/she was not a woman at the time of birth; and one of two or more personal letter guarantees must be attached (No. 20102-1 of the Family Relationship Register No. 3, Feb. 3, 2010), and the report of birth was rejected on the ground that these documents were not submitted. According to the competent community service center, the certificate of birth was rejected by the Chinese authority around 209, which was recognized as a refugee status by the Japanese government, and thereafter, it does not constitute a document that proves that the mother cannot be issued a certificate of travel.

C. In order to obtain confirmation from the competent family court pursuant to Article 57(2) of the Act on the Registration, etc. of Family Relationship (hereinafter “Family Relationship Act”), the applicant sought confirmation from the first instance court, but was dismissed on April 16, 2019. The applicant filed an appeal to the lower court.

2. The judgment of the court below

Article 57(1) of the Family Relationship Registration Act provides that "where the father of a child born out of wedlock has filed a report of natural birth, the report shall have the effect of recognition," and Article 57(2) of the Family Relation Registration Act provides that "where the father of a child born out of wedlock has filed a report of natural birth, the report may be filed after obtaining confirmation from the father's basic domicile or family court having jurisdiction over the domicile of the father where the father's name, basic domicile and resident registration number cannot be known."

The purport of the provision of this case is to facilitate the report upon confirmation by the Family Court where it is difficult to identify the mother's personal information or to submit documents proving the birth, such as a birth certificate, in order to report the birth of a natural father pursuant to Article 57 (1) of the Family Relationship Registration Act.

However, the instant case is a foreigner who is the mother of the instant child, but the name, date of birth, and nationality of the mother are written on the birth certificate, and the content thereof conforms to the entries in the “child’s mother” column of the birth certificate, and thus does not constitute “where the name, place of registration, and resident registration number of the mother is unknown” as prescribed in the instant provision. According to Article 8 of the Guidelines on the Report of Birth (Article 412 of the Regulations on Family Relationship 8, Jan. 8, 2015; hereinafter “the Rules on Family Relationship”). According to Article 8 of the Rules on the Report of Birth (Article 412, Jan. 8, 2015; hereinafter “Rules on Family Relationship”), when the report of birth of a child born out of wedlock is filed, the report of birth of the father may be submitted to the mother in writing proving that there is no spouse, or if the father is not clear or registered on the family relations register, the report of birth of the instant principal was rejected. Therefore, the applicant’s assertion is without merit.

3. Judgment of the Supreme Court

A. A person whose father or mother is a national of the Republic of Korea at the time of birth and at the same time (Article 2(1) of the Nationality Act). If the same result occurs as the State does not receive the report of birth for a child born as a national of the Republic of Korea, or the procedure is complicated and long time, it infringes on the dignity and value of human beings, the right to pursue happiness, and the right to personality of a child (Article 10 of the Constitution of the Republic of Korea) by deprived the child of an opportunity to obtain social status (Article 10 of the Constitution of the Republic of Korea). In order to use the State’s system operated by a modern society, he/she shall have the social status such as resident registration, and the acquisition of social status begins from the report of birth of an individual. The child born as a national of the Republic of Korea has the right to obtain birth immediately after his/her birth. This right is a fundamental right that is a premise to guarantee all fundamental rights, and thus, it may not be restricted by law (Article 37(2) of the Constitution of the Republic of the Republic of Korea).

Article 36(1) of the Constitution declares, “Marriage and family life shall be established and maintained on the basis of individual dignity and gender equality, and the State shall ensure that it is the State.” The individual’s right to self-determination of individuals and families on how to respect marriage and family life in marriage and family life, and how to care for marriage and family life should be respected. As long as marriage and family relationship infringe on another person’s fundamental rights or public interest, intervention of state agencies in marriage and family life should be avoided (see Supreme Court en banc Decision 2016Meu2510, Oct. 23, 2019). In addition, Article 7(1) of the Convention on the Child’s Rights declares that “child shall be registered immediately after birth, shall have a name from birth, obtain nationality from birth, and, as far as possible, shall have the right to receive fostering to parents with the knowledge of the legal relations and registration of changes in family and family relations shall also be respected even when the legal relations and registration of changes in family and family life should be respected.”

B. The Civil Act regulates the paternity relationship between a child born out of wedlock and a child born out of wedlock. While the parent’s relationship is established based on the fact that the child born out of wedlock is born, the parent-child relationship is established immediately in the relationship with the mother, but in the relationship with the father, the parent-child is recognized as his/her own child (Article 855(1) of the Civil Act). The recognition of a child born out of wedlock is effective upon filing a report in accordance with the Family Relationship Act (Article 859(1) of the Civil Act). If the father-child is recognized as a father-child (Article 55(1)3 of the Family Relationship Registration Act), it shall state “the name, standard place of registration, and resident registration number of the mother-child” (Article 55(1)3 of the Family Relationship Registration Act should be stated as “the report of the child born out of wedlock should be filed by the mother-child” (Article 46(2) of the Family Relationship Registration Act). In principle, the report of whether the child born born out of wedlock is a child born out of wedlock shall be reported.

According to the previous practice of family relationship registration, the name, origin, base date of registration, resident registration number (where the father or mother is a foreigner, his or her name, date of birth, nationality, and alien registration number) of the parent is recorded (Article 44(2)4 of the Family Relationship Registration Act). Even though the Family Relationship Registration Act provides that the father of the child can independently report the birth of his or her father due to the birth of his or her child, if the father is unable to identify his or her whereabouts due to the unknown whereabouts after his or her birth, the father cannot report the birth alone, and it can not be determined by additional procedures such as application for designation of a guardian, application for designation of a guardian, creation of a family relationship, creation of a new surname, recognition, etc.

C. In order to prevent such an incident, the instant provision was newly established on May 18, 2015 (Act No. 13285). As such, the purpose of the instant provision is to enable the birth report upon confirmation by the father or by the family court having jurisdiction over the domicile of the father in the case of “where the father’s name, standard place of registration and resident registration number cannot be known” to the effect that “the birth report may be made by means of confirmation by the family court where the father’s identity is unknown, so that the father’s right to life may be guaranteed by allowing the birth report upon confirmation by the family court.” In other words, the purpose of the instant provision is to enable the father’s birth to be confirmed even if the father’s child is unknown due to the development of medical science and technology, to make the father’s birth report independently by means of simple birth report, and to make it possible for the father’s birth report to be prepared within 7 months or ex officio by the family court or ex officio (Article 48(4) of the Family Relation Registration Act).

As seen above, examining the purport and legislative history of the provision of this case, the structure of relevant statutes and the importance of the right to be registered for the birth of a child together, the provision of this case is intended to make a report upon confirmation by the family court having jurisdiction over the place of original domicile or domicile of the father in the case where it is impossible to identify the mother's personal information, which is the entries of the report under Article 44 (2) of the Family Relationship Registration Act, even though the birth father could independently report the child's birth under Article 57 (1) of the Family Relationship Registration Act, so that the report can be made after obtaining confirmation from the family court having jurisdiction over the place of original domicile or domicile of the father, and the case where "the name, original domicile and resident registration number of the mother cannot be known" as stated in the text of this case. Thus, it is reasonable to interpret that the provision of this case is applicable even if the mother's personal information, as in the case of this case, cannot be provided with documents necessary for the report of birth for reasons

D. We examine in light of these legal principles.

According to the results of genetic testing for the principal of the case and the applicant attached to the record, the principal of the case may be recognized as the relative of the applicant. The mother of the principal of the case did not have the necessary documents for the report of birth as prescribed in Article 8 of the Rules of this case at the wind to suspend the validity of the passport from the Chinese authority. This is included in the scope of application of the provisions of this case where the mother cannot have the necessary documents for the report of birth for reasons not attributable to the foreigner. Therefore, even though the applicant can have the report of birth for the principal of the case upon confirmation of the family court as prescribed in Article 57(2) of the Family Relation Relation Registration Act, the court below determined otherwise, which erred by misapprehending the legal principles on the scope of application of the provisions of this case, and thereby erred by misapprehending the legal principles on the scope of application.

4. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)