복수국적자의 공무담임권 제한에 관한 연구

Abstract

In the Act 1 of the Montevideo Convention on Right and Duties of States regarding the right and obligation of the nation, 4 of the composition elements of a nation are regulated. It stipulates the ‘permanent population’ as one of the human composition elements among 4 of them. The problem of who belongs to the permanent population of a certain nation is regulated through nationality acts in each of the nations. The implication of holding a nationality in international society in the past was understood to mark the national unity and integrity of the nation. As a result, most of the nations set ‘single nationalitism’ as the basic principle. However, the development of the internet along with rapid development of transportation caused the increase of the number of foreigners staying for long-term, the continuous acknowledgement of conventional status of Koreans that is possessed in foreign countries, the maintenance of outstanding foreign labors, and multi-culturalism, as well as the demand for acknowledgement of multiple citizenship, and Korea is also permitting the possession of multiple citizenship limitedly through the amendment of Nationality Act. The Paragraph 2 of the Article 11 of current Nationality Act stipulates that “Those who have foreign nationality along with the Korean nationality by births or other acts are treated only as the Republic of Koreans in the application of Korean Acts”, clarifying that those with multi-nationalities would only be treated as the citizens of the Republic of Korea by applying the domestic Acts. However, various legislative measures are needed regarding the rights and obligations that can be exercised by the multi-nationals as the citizens of Republic of Korea. The Article 25 of the Constitution regulates that “All citizens have the right to have the public office as prescribed by the law”. The right to have the public office in the Article 25 of the Constitution refers to the right that guarantees the opportunity to take the office whether it is the government affair determined by the Constitution or the government affair determined by the law. Also, as for the right to take the public office, due to the nature and functions of public affairs, except for the cases that are explicitly stipulated in the Constitution, it can be limited as prescribed in the Article 37 Paragraph 2 of the Constitution. Then, as the multi-nationals are admitted as the citizens of Republic of Korea, in the case when limit is applied for the rights to take the office, it would be necessary to confirm whether the validity of the purpose of limit and the predictability of the purpose of the limit are secured. Also, there are no regulations about whether those with multi-nationals are eligible to become the elected officials who can exercise important policy decisions such as national security, maintenance of order, and public welfare, and this also needs legislative review. Accordingly, this writing is intended to examine about the problems and the measures for the improvement of the National Acts regarding the limit of the right to take the public office for the multi-nationals. For this, the foreign legislations would be reviewed first, and after reviewing the status of current law, the legislative measures of improvement regarding the limit of the right to take the office by the multi-nationals are suggested.