북한이탈주민의 이혼소송과 북한주민의 법적 지위

Abstract

The Number of people who extricated from North Korea and entered South Korea exceeded 13,000 until 2008. A woman among them instituted a lawsuit for divorce in the Seoul Family Court against her husband in North Korea in 2004. At that time, the Seoul family court sentenced the plaintiff permission to divorce. However, This kind of litigation contains various legal issues, including procedural and substantial issues in law, because South and North Korea have respectively different legal system in procedural and substantial law. To solve these contradictions and conflicts in law, it is prerequisite that the legal status of North Korea and people in North Korea should be examined. This can be explained according to the theory on the special relationship between South and North Korea. According to the theory on the special inter-Korean relations, the people in North Korea are entitled to possess the same legal rights as the people in South Korea in the constitutional level. Especially, South Korea should exercise diplomatic protection rights for the people who escaped from North and stay in another countries as long as they want to be protected as nations of South Korea. The constitutional court and the supreme court sentenced that the people in North Korea are nations of South Korea. But the people in North Korea should be treated as semi-foreigners in the normative field where North Korea makes conversation and cooperate with South Korea to realize peaceful reunification. Therefore, South Korea has jurisdiction over the divorce suit of people who extricated from North Korea against there spouses in North Korea. The special law for protection and support for the people who extricated from North Korea and entered South Korea has revised to enable to deal with these cases in 2007.