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The NHRCK recommends the Chief Justice of the Supreme Court to revise regulations, allowing international marriages registration to be in accordance with domestic laws
The National Human Rights Commission of Korea (NHRCK, Chairperson Song Doo-hwan) urged the Chief Justice of the Supreme Court to accommodate its recommendation requiring an amendment of the Supreme Court’s established rule on “Marriages between a South Korean and a Cambodian” in July 2023. According to the rule, which aims to prevent human trafficking and irregular and/or unhealthy marriages such as a sham marriage, any South Korean marrying a Cambodian shall submit a “Marriage Certificate” authorized by the Cambodian law.
A South Korean man, who divorced his Cambodian spouse and then reunited three months later, reported his marriage to a municipal office. His application was dismissed, however, because he failed to follow the procedure prescribed by the Supreme Court’s established rule and get the marriage certificate recognized by the Cambodian government. The petitioner filed a complaint, claiming his right to pursue happiness was abused by the municipal office’s decision.
The mayor of the city in question argued that administrative work related to family relations is delegated by the Supreme Court, which means it shall follow the Courts’ provisions.
In addition, a competent district court ruled that where a South Korean marries a foreigner here, marriages can be legally recognized by either South Korea or the corresponding country. In this case, the petitioner marrying a Cambodian is allowed to register their marriage only under the Supreme Court’s rule, requiring the Cambodian government’s marriage certificate.
Article 36 of the Constitution of the Republic of Korea stipulates that the state shall do everything to protect and ensure marriage and family life. The “Act on Private International Law” provides “the form of marriage shall be governed by the law of the place where the marriage is to take place or by the law of the nationality of one of the parties: Provided that where the marriage is to take place in South Korea, and either party to the marriage is a national of South Korea, the law of the Republic of Korea shall govern” under Article 63, paragraph 2.
Reviewing the relevant laws, a committee on human rights violations 2 reached a conclusion that a marriage between a South Korean citizen and a foreigner taking place in South Korea is valid by completing the procedure prescribed under South Korean law. Accordingly, the procedure to register a marriage in the country of a foreign spouse is not necessary.
Admittedly, the established rule of the Supreme Court can have significance as a preventative measure but the rule lacks clear and sufficient legal basis to limit the right to marriage. In addition, considering the fact that the petitioner reunited with his former spouse right after the divorce, strictly formulaic approaches to the rule might be in violation of the principle of excessive prohibition.
In conclusion, the NHRCK recommended that the Chief Justice of the Supreme Court should not apply its established rule when overseas marriage pose no risk of human trafficking and irregular and/or unhealthy marriages.
After filing the petition, the spouse of the petitioner went to Cambodia to complete the marriage registration. The South Korean government also recognized the