The ruling came in a case filed by a Vietnamese man, his spouse and their child, in which the court unanimously found the government's failure to establish a system for registering the births of foreign children born in here unconstitutional.
The man entered South Korea in 2008 on a nonprofessional employment visa and married a Vietnamese woman in 2016. The couple remained in the country after their authorized periods of stay expired.
His wife gave birth to a child at a hospital in Seoul in 2019, but they were unable to register the child's birth because the relevant law only provides for the registration of births, marriages and deaths of South Korean nationals or foreign nationals legally residing in the country.
The man filed a complaint in February 2022, arguing that the lack of a legal basis for registering the births of foreign children born in South Korea violated his child's basic rights.
The court said children have the right to have their births registered as soon as possible so the state can record basic information about them and ensure they receive protection.
The court said birth registration is a basic right even if it is not explicitly stated in the Constitution. It added that registering a child's birth helps protect the child and ensures they receive the care and support needed to grow up healthy under the care of their parents and family. The court also stressed that there should be no difference between South Korean and foreign children when it comes to this right.
It warned that children without birth registration could be more vulnerable to abuse or abandonment because there would be no official record of their existence, pointing out that they could also become targets of crime because their identities may remain unknown.
The court said the government has a constitutional obligation to establish a legal framework allowing children born in South Korea to have their births registered, regardless of their nationality, immigration status or whether their births have been registered in their home countries.
AJP Takeaways
• The Constitutional Court unanimously ruled that the lack of legal provisions allowing foreign children born in South Korea to register their births is unconstitutional.
• The court said birth registration is a basic right for all children, regardless of nationality, and is essential for ensuring they receive protection, care and support.
• The court ordered the government to establish a legal framework allowing children born in South Korea to register their births regardless of their nationality, immigration status or registration status in their home countries.
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