북한주민의 법적 지위

Abstract

The legal status of North Koreans is important because it determines whether the Korean government could give consular protections and diplomatic protections to them. The majority view sees that they have South Korean nationality because the North Korean territory is, according to article 3 of the South Korean Constitution, a part of South Korea. The majority view interprets that the Korean Supreme Court ruled that North Koreans have South Korean nationality. The South Korean Constitution, however, stipulates that the requirements of nationals are to be regulated, not by the Constitution, but by parliamentary acts. The Nationality Act of Korea adopts the principle of jus sanguinis, in which the nationality of parents determines child‘s nationality. According to the Nationality Act, those born in Korea do not necessarily have South Korean nationality. Therefore, North Koreans do not have South Korean nationality until they get Protection Determination by the Ministry of Unification, which is stipulated in the Act concerning Protection and Settlement Assistance of North Korean Defectors. According to the Acts, North Korean Defectors are those who have address, direct family members, spouse or work place in North Korea. Nationality should be determined on an individual basis. The collective group of North Koreans could not have nationality. Only the North Koreans who apply for South Korean nationality could enjoy the nationality allowed by the Protection Determination. North Koreans could not enjoy South Korean nationality until the process is finished. North Korean defectors are under great difficulties in securing refugee status in other countries because they are considered to have South Korean nationality. Under the Korean law, however, they do not have South Korean nationality.