북한이탈주민의 국적과 재판관할권 행사

The Nationality Act does not stipulate on the nationality of North Koreans but, according to the majority view, North Koreans have South Korean nationality based on Article 3 of the Korean Constitution which stipulates on the territory of Korea. The Article, however, could not be a legal basis on determining the nationality because Article 2, paragraph 1 of the Constitution stipulates that nationality is determined by law. The legal argument that North Korean defectors, although they have South Korean nationality, could enjoy the nationality only if they express their will to defect to South Korea is contradictory and has no legal basis. The only legal and administrative procedure for North Korean defectors to get South Korean nationality is under Protection Procedure stipulated by the Act on Protecting North Korean Defectors. In that process, the Korean government enjoys some discretion whether to protect them or not. It would be proper that Korean courts, recognizing the statehood of North Korea, do not exercise criminal jurisdictions over crimes committed in North Korea. The issue should be solved by a judicial cooperation between the two Koreas. It should be noted, however, that the Convention against Torture places some restrictions in returning North Korean criminal suspects to North Korea.