병역준비역에 편입된 복수국적자의 국적이탈의 자유 제한의 헌법적 한계와 입법적 개선방안 – 헌재 2020. 9. 24. 2016헌마889 결정에 대한 평석을 겸하여 -

Abstract

The current Nationality Act does not allow Korean males with multiple nationalities to renounce their nationality until the end of March of the year they turn 18 when they are assigned to the preliminary military service before they have resolved their military service obligations (the part concerning the main text of Article 12 Section 2 in the proviso of Article 14 Section 1 of the Nationality Act). In addition, the current enforcement rule of the Nationality Act require that persons with multiple nationalities attach a certificate of family relations records to their application for declaration of renouncement of nationality so that persons with multiple nationalities who have not registered their birth in Korea must first report their birth prior to declare the renouncement of nationality (the main text of Article 12 Section 2 of the Nationality Act). In the 2016Hun-Ma889 decision, which was declared on September 24, 2020, the Constitutional Court decided that, without considering the circumstances in which it is difficult to hold persons with multiple nationalities accountable for failure to declare their renouncement of nationality within the nationality selection period, the provision of the Nationality Act at issue uniformly does not permit to renounce their nationality, which is deemed to be a significant restriction of fundamental rights, so it infringes on the freedom to renounce nationality of persons with multiple nationalities. On the other hand, it was decided that the provision of the enforcement rule of the Nationality Act at issue does not infringe on the freedom to renounce nationality of persons with multiple nationalities. However, without taking into account the circumstances of persons with multiple nationalities, who have difficulty in completing their birth notification procedure according to the domestic law of Korea, because they have the main living basis in foreign countries, it is a significant restriction of the freedom to renounce nationality to uniformly place the burden of birth notifications on them according to the domestic law of Korea, making it virtually impossible for the applicants to renounce their nationality. Therefore, it is reasonable to see that the enforcement rule at Issue infringe on the freedom to renounce nationality of persons with multiple nationalities. On the other hand, in order for the provision of the Nationality Act at issue to comply with the Constitution, it should be amended to allow the renouncement of nationality by defining the requirements and procedures if there are justifiable reasons for persons with multiple nationalities whose main basis for living in a foreign country fail to declare their renouncement of nationality within the declaring period for the renouncement of nationality. In addition, in order for the enforcement rule of the Nationality Act at issue to comply with the Constitution, it should be amended so that when going through the procedure for declaring renouncement of nationality or (if the declaring period for notification to renounce nationality has passed) going through the procedure for approval for renouncement of nationality, persons with multiple nationalities, who have not reported their birth in accordance with the domestic law of Korea, are allowed to confirm their identity and their family relations through foreign official documents without newly reporting their birth domestically.