1. Facts
○ The claimant was born on February 25, 1969 in Korea.
○ The claimant became naturalized on March 21, 2003 and acquired Australian citizenship.
○ The claimant entered the Republic of Korea on December 21, 2015 with a tourist pass (B-2).
○ The applicant applied for permission to change the status of residence as an overseas Korean (F-4) to the Seoul Immigration Office on January 15, 2016.
○ According to the guidance of the staff in charge, the claimant filled out the ‘Report on Loss of Nationality’ and submitted it to the Minister of Justice.
○ The claimant claimed that the Commissioner of the Seoul Immigration Office and the Office of Foreigners had deprived him of his Korean citizenship by requesting the ‘Resignation of Korean Citizenship(대한민국 시민권 포기각서) from the applicant without detailed explanation.
○ The applicant filed a constitutional complaint seeking the cancellation on September 9, 2021.
2. Court judgment
○ According to the results of the fact inquiry on September 15, 2021 to the Commissioner of the Seoul Immigration Office, the document submitted by the applicant at the time of application for permission to change the status of residence on January 15, 2016 is a ‘report of loss of nationality(국적상실신고서)’.
○ Article 15, Paragraph 1 of the Nationality Act stipulates that “a person who voluntarily acquires a foreign nationality as a Korean national loses his or her Korean nationality when he/she acquires the foreign nationality.”
○The claimant immediately lost his Korean nationality in accordance with the provisions of March 21, 2003, when he voluntarily acquired Australian citizenship. Submitting a notification of loss of nationality is only one part of the process of reporting loss of nationality. This does not mean that the claimant loses his or her nationality of the Republic of Korea.
○ After all, the act of instructing a claimant to submit a report on loss of nationality by the Director of the Seoul Immigration Office and the Office of Foreigners is not an exercise of public authority that directly affects the rights and obligations of the claimant. It cannot be the subject of a constitutional complaint.
Constitutional Court judgment 2021헌마1127
3. Rules
Nationality Act
Article 15 (Loss of Nationality Following Acquisition of Foreign Nationality)
(1) A national of the Republic of Korea who voluntarily acquires the nationality of a foreign country shall lose the nationality of the Republic of Korea at the time when he/she acquires the foreign nationality.
(2) Any of the following nationals of the Republic of Korea shall be deemed to have lost his/her nationality of the Republic of Korea retroactively from the time of acquisition of the foreign nationality, if he/she fails to declare his/her intention to retain the nationality of the Republic of Korea to the Minister of Justice within six months after acquisition of the foreign nationality:
1. A person who has acquired the same nationality as his/her spouse, through marriage to an alien;
2. A person who has acquired the nationality of an adoptive father or mother through adoption by an alien;
3. A person who has acquired the nationality of his/her father or mother through acknowledgement by a foreign father or mother;
4. A minor or the spouse of a person who has lost the nationality of the Republic of Korea through the acquisition of a foreign nationality, and has concurrently acquired the foreign nationality under Acts of the foreign country.
(3) With respect to a person who has lost the nationality of the Republic of Korea due to the acquisition of that of a foreign country, where the date of acquisition of the nationality of the foreign country is unknown, the date his/her foreign passport was first issued shall be deemed to be the date he/she acquired the nationality of the foreign country.
(4) Procedures for reporting under paragraph (2) and other necessary matters shall be prescribed by Presidential Decree.