출생등록과 국적취득의 선후관계 고찰: ‘국민’에 한정된 가족관계등록제도의 모순과 한계

Abstract

The “Act on the Registration, etc., of Family Relations” (hereafter referred to as the “Family Relations Registration Act”) only applies to “nationals,” thereby excluding so-called “foreign children” from birth registration. This approach of determining a newborn’s eligibility for birth registration based on nationality status is fundamentally flawed. Birth registration is a process through which a child is recognized as a “person before the law,” while the acquisition of nationality is a step that grants membership in a particular nation to the legally recognized person. Therefore, birth registration should precede any determination of nationality. The current birth registration system, however, reveals contradictions and limitations by requiring that a child first qualify as a national, thereby making birth registration contingent on acquisition of nationality. Under the nationality system based on jus sanguinis, the Family Relations Registration System is designed to facilitate the tracing of bloodline heritage and conferring nationality on the children of registered nationals through birth registration. This design might work smoothly under the assumption that Korea is a nation solely reproduced through bloodline; however, as members with diverse nationalities emerge, the system inevitably reveals problems in situations where birth registration and nationality acquisition cannot occur simultaneously. In cases where both parents are foreigners, or in instances of extramarital births involving a foreign mother and a Korean father, as well as situations where there is a change in nationality after birth, people may face denial of birth registration, be subjected to discriminatory procedures, or find that their birth records are closed due to nationality status. This article asserts that the state has an obligation, under international human rights law and the Korean Constitution, to ensure that every child born within its territory has the right to be registered immediately after birth. It argues that birth registration must be guaranteed before and regardless of nationality determination and that the continuity, permanence, and universality of the birth registration system should be ensured. Based on the recently introduced birth notification system, which provides a procedural basis for birth registration for all children, including those born to foreign mothers, the article advocates for institutional improvements. It proposes that the Family Relations Registration Act be revised to incorporate nationality as a piece of information rather than a prerequisite, thereby ensuring that the right of children to birth registration is protected regardless of their own or parents’ nationality or immigration status, while accommodating the diversity and fluidity of nationality.