북한주민의 국적과 북한이탈주민보호법상 보호결정의 법적 성격

The majority view is of the opinion that, according to Article 3 of the Korean Constitution on territory of Korea, North Koreans have the nationality of South Korea. Other views include that North Koreans, being potential South Koreans, become a South Korean after defecting to South Korea. These views lack sufficient legal grounds and become an substantial obstacle for North Koreans to obtain refugee status in a third country. The view that the Korean Supreme Court interprets that North Koreans have South Korean nationality is groundless. According to paragraph 1, Article 2 of the Constitution, the requirements to get nationality should be by statutes of law. According to the principle of jus sanguinis under the Korean Nationality Law, a child of Korean parents acquire Korean nationality by birth. The view that a child of North Korean parents get Korean nationality under the Law lacks legal grounds because South Korean laws differentiate South Koreans from North Koreans. North Korean defectors get South Korean nationality by Protection Procedure under the Law on Protection and Settlement Assistance for North Korean Defector or the Decision Process under the Nationality Law. People protected by the Law on Protection and Settlement Assistance for North Korean Defector are not those of having North Korean nationality but those defecting to South Korea after having lived in North Korea. According to Protection Procedure, South Korean nationality is allowed or denied through review process. Minister of Reunification may decline to give them South Korean nationality if there is a reason not to protect under paragraph 1, Article 9 under the Law. Those who have been denied South Korean nationality could file an administrative law suit.