국적상실 법제의 행정법적 쟁점 — 국적상실결정과 국적취소의 비교검토 —

Since nationality is the fundamental foundation of the legal relationship between an individual and the state, the deprivation of an individual's nationality by the state must be done under strict public law principles. The Nationality Act regulates two types of denaturalization by the will of the State administration, that is the deprivation of nationality(article 14-4) and the revocation of naturalization(article 21). From the point of view that deprivation of nationality is justified only for serious breaches incompatible with the membership, it is questionable whether certain criminal acts stipulated in the Nationality Act as reasons for deprivation of nationality can be regarded as a threat to the fundamental order of the State. The Nationality Act limits a deprivation of nationality to those who have multiple nationalities and who do not acquire nationality by birth. In other words, the nationality law discriminates between multiple nationalities and single nationality on the one hand, and on the other hand, those who have acquired nationality by birth and those who have acquired nationality for other reasons. The latter is based on a consideration that is difficult to deal with in legal arguments: national sentiment. Revocation of naturalization can be seen as an ex officio revocation of administrative act in that the competent authority cancels the naturalization on the ground of its illegality. Relying on the general administrative law dogmatics that competent agency can revoke an unlawful administrative act without explicit legal grounds, the courts have reasoned that the competent authorities could revoke the naturalization for the grounds of illegality that are not caused by false representation or other dishonesty of the applicant. However, it is undesirable to allow the revocation of naturalization based on the general administrative law dogmatics. Rather, Rather, for the sake of the stability of the citizen's legal status, revocation of naturalization should be permitted only for reasons stipulated by the Nationality Act. However, current legislations on the grounds of revocation of naturalization which require false or other fraudulent behavior of the applicant is overly strict, it is desirable to broaden the revocation grounds as a serious illegality in naturalization permission, etc. While the Nationality Act provides a procedural guarantee of a hearing for deprivation of nationality, the procedural guarantee for revocation of naturalization is weak. Even in the case of revocation of naturalization, the procedural guarantee of the hearing should be strengthened.