미등록 아동 방지를 위한 출생등록될 권리의 법제화 방안 - 헌법재판소와 대법원의 해석 차이와 입법적 대응 -

This paper analyzes the divergent interpretations of the Constitutional Court and the Supreme Court of Korea with respect to the legislative institutionalization of the “right to birth registration” as a means of preventing unregistered children, and proposes directions for future legislative responses. The point of departure is the recognition that, although birth registration constitutes a prerequisite for human dignity and the protection of fundamental rights, migrant children and children born outside of marriage remain in a legal blind spot under the current domestic system. While the birth notification system and the protected childbirth system, which took effect in July 2024, are expected to alleviate these problems to some extent, the effectiveness of the system is concentrated on children with Korean nationality, and a protection gap for foreign and migrant children still exists. The Constitutional Court recognizes the right to birth registration as an unenumerated constitutional fundamental right, interpreting it as a universal human right grounded in children’s human dignity, the right to life, and the right to equality. In contrast, the Supreme Court adopts a more restrictive approach, emphasizing the procedural requirements of the Family Relationship Registration Act and the principle of the presumption of paternity. This divergence in interpretation carries significant implications for the institutional design necessary to ensure the effective protection of children’s rights. Ultimately, the right to birth registration must be institutionally guaranteed as a universal human right, irrespective of nationality, legal status, or marital status of the parents. To this end, legislative reforms are required, including the expansion of eligible registrants, the introduction of ex officio registration mechanisms, and the establishment of a comprehensive protection system for migrant children.