1. Non강iscrimination (art. 2)
37. The requirements of this article are met through the CoIistitution.
The Constitution prohibits 없ly form of discrimination against achild by
provi버ng that "all citizens shall be equal before 않le law, and there shall be no discrimination in all fiel야 of political
,
economic,
social or cl괴.turallife on account of sex
,
religion or social status". It requires courts of law 없ld administrative authorities 와ld other agencies performing public administration duties in 않le cou업e of their acti찌ties to respect universal equality under 않le law and to observe objectivity and impartiality. As Korea is a very homogeneous country,
special mention can be made on the provisions aimed at preventing dis않imination on grounds of sex,
없ldthere is little discrimination because of sex.
38. 앉피ldren born out of wedlock have been recei피ng indifferent and,.6r unkind treatment due to 강le emphasis on the social custom of monogamy
없ld legal marrlage. The governm얹lt of 감le Republic of Korea, valuing every individual as equal
,
endeavors to treat such child equal to a child born from leg떠 maπiage in terms of status 없ld property. The Civil Code provides for a child born out of wedlock not to be legallydis떠minated against in most areas .including inheritance. However
,
in deciding 바le order of succession to family headship,
않le child born during marriage has priority among lineal descendants having 않le nearest relationship. Also,
under 감le Fam퍼y Registration Act,
whether the child was born 뇨1 없ld out of wedlock is stated on the birth report.39. No privileged class shall be recognized or ever be established in 뻐y
form. Also
,
no citizen shall suffer unfavorable treatment on account ofa끄 act not of his,her own doing but committed by a relative. That is
,
privileged class is not rec떻피zed and a child is
,
by regulation,
protected fromdisadvantages due to actions of relatives.112 lnformation in Relation to the Articles of the Convention
2. Best Interest of the Child (art. 3)
40. Korea’s po1icy con않irning cl피ldren is based on parents bea퍼끄.g the
m려n responsibility for their children’s m려ntenance and upb퍼n밍ng.
Par，얹lts are 감le most important persons in 감le cl피ldren’s 1ives. Par，앙lts
must have community support for 상leir parenting
,
and paren뼈1 rights may be kept wi않파1 피mits under some circumstances. The child must be앙ltitled to protection from offensive treatment even 람om hisA:ler parents.
41. The principle of best 뇨lterest of the child is exp1icitly upheld in the Child Welfare Act. It is a primary consideration to deal wi삐 all areas
regar버ng 않le care, custody, education 없ld property of 않le 상rild， whe.않ler
undertaken by pub1ic or private social welfare institutions
,
courts of law,
administrative authorities or legislative bodies. This principle under1ies
떠1 않le measures whicl1 have been set in place for promoting the welfare of children in 않le Repub1ic of Korea.
3. The Right to. Life
,
Survival and Development (art. 6)42. The Constitution provides 않lat all citizens shall. be assured di맑rity 없ld value of human being and have the right to pursue happiness. It is the duty of 않le. State to confir:rn and guarantee thefundamental 없1d
inviolable human rights of individuals.
43. Under 바1e Juvenile Act
,
a juvenile sentenced to the death penalty or penal servitude or imprisonment for 1ife for a crime committed before 18 years ofage,
shall have 않1e sentence reduced to 15 years of penal servitude. Children’s right to survival and development is further dealtwi감1in 않1esectionheaded Basic Heal뼈 and Welfare.
4. Respect for the Views of the Child (art. 12)
44. The parental authority has 감1e rightand duty to protect and
않neral Princi ples 113
edU(월.te 않1e child. However
,
if a parental au삶10rity or its representative abuses,
is 맑피ty of gross misconduct or endangers 않1e property of his;her child by mismanagement,
parental rights are forfeited. Moreover,
forfeiture or pronouncement of forfeiture of the right of representation on juristic acts of 않1e child and the right of management of the prop않ty of the child may be requested.
45. Pronouncement of forfeiture of parental authority may be requested by 않1e relatives, pursu없1t to 바1e provision of 않1e Civil Code, prosecutor, Mayor of Seoul or 않1e provincial governor, and is adjudged by 않1e
Fami1y Court wi감1 a prior petition to 않1e COurt for arbitration.
46. When the person with parental authority is representing a child, in
않1e case where an obligation is to be assumed requ뇨ing any act of 바1e d피ld， 않1e consent of 감1e child itself shall be obtained. Also, a minor
wi삐 않1e ability to express hisþer own thought
,
wi않1 approval of hisþer parental authority,
may conduct business acts. Juristic acts for 않1epurpose of merely acquiring a right or being relieved of an obligation may be done wi버out consent ITOm 않1e parental aU않10년ty.
47. When 감1e parents cannot rea강1 agreement on matters concerning custody in case of legal separation, a child who is more than 15 years old is consulted as to which parent he.쳐:he wants to stay with. In case of adoption of a child aged 15 or over, 않1e child may not be adopted without hisþer own consent.
D. Civil Rights and Freedom
1. Name 없ld Nationality (art. 7)
48. Concern.ing the registration and the surname of a child, the Ci찌1
Code provides that a child shall tak.e his,.her father’s surname 없1d 감1e ori힘끄 of his surname
,
and be enrolled in the father’s ß없피ly registry. In않le case of a child whose father is not recognized, his,.her mother's surname and the origin of her surname are .taken, 뻐d hel쉴:he is enrolled in the mother’s ß없nily registry. However, a child whose father
없ld mother are not ascertainable
,
wi암1 approval of the COurt,
may establish a new surname and ori힘n of surname, 뻐d establish a newf없nily.
49. Under the Family Registration Act, parents of all children must report 바1e date 없1d time of birth, place, etc. at the cl피ld’s b뇨않1-place，
wi않파1 one month from 않1e date of the birth of the child. For foundlings and children in residential 않re， authorities of municipality
,
dis펴ct， 없1d town or the directors of 않1e residential facilities
,
with the court’s permission,
establish the child’s surname and ori빙n of surname,
a끄d later decide on 남1e name and perm없1ent domicile to be entered on
않1e family registry.
50. All children, 뇨1clu버ng children born out of wedlock, foun버뇨19s，
없1dφ，r stateless children
,
are guaranteed to acquire nationality as provided under 않1e N ationality Act. (i) A person whose father is a national of the Republic of Korea at the time of hi뼈er birth, (퍼.) a person whose fa않1er died before his,Æler birth and was a national of 감1eRepublic of Korea at the time of death, (iü) a person whose mother is a national of the Republic of Korea or, (iv) a pe얹on who is born in 않1e
Republic of Korea, if his,Æler father is unknown or they have no nationality
,
is a citizen of 암1e Republic of Korea. However,
피 감1e case of a clilld born of a Korean mother 없1d a father whose country followsCivil Rights and Fr얻edom 115
the bir않1-place principle 'in determining nationality
,
there isa
possibility for 않1e child to have no nationality.51. All foundlings discovered in 바1e Republic of Korea are presumed to have been born 뇨l 않1e Republic of Korea, 없1d therefore a child is prevented from being stateless.
2. Preservation of Identity (art. 8)
52. No Korean citizen who is or had been do며ciled in Korea may be deprived of his"her citizenship except when he，껴:he expresses consent to become a citizen of 없lOther COUI따y. In 않1e case of children or m뇨10rs
under 20
,
however,
it may be prescribed 않1at citizenship is to follow 않1eparents or one of them. The conditions on which a Korean may be
dep퍼.ved of citizenship are defmed in detail by the Nationality Act.
Korean nationa1ity is lost by (i) one who has married an alien and has
aCql따'ed 않1e nationality of the spouse; (ii) one who has been adopted by an a1ien and has acquired the nationality of 않1e alien; (iü) one who once acquired 감1e nationality of the Republic of Korea by marriage but
ac댄다red 뻐.e nationality of a foreign country by annulment of 않1e m않riage or divorce; (iv) one who has voluntari1y acquired 뼈e nationality of a foreign country; (v) one who
,
having a dual nationality,
relinqushed않1e nationality of the Republic of Korea wi않1 않1e permission of the Minister of Justice; (떠) one who, being a minor of nationality of 바1e
Republic of Korea, has acquired the nationality of a foreign country by
ac.뇨lOwlegement of an alien, provided that it will be an exception if such minor has become 않1e wife oran adopted child of a nationalof the Republic of Korea; (피i) In case of an 와ien who has obtained 뻐e
nationality of the Republic of Korea and has not lost the nationality of
hisori힘n와 country a比er six mon암lS have elapsed.
53. When a person has forfeited 않1e nationality of 않1e Republic of Korea
,
heJ밟1e may restore nationality of the Republic of Korea wi바l 않1e116 lnformation in Relation to the Articles of the Convention
approval of 않le Minister of Justice. A child of a person who acquires
않le nationality of the I ~publ (f l' ".orea 없ld who is a minor under 암le
law of the country, obtains t.he nationality of the Republic of Korea together with his"herparents.
54. A child born out of wedlock may be acknowledged by his"her fa뼈.er
or mother. A child born out of wedlock is deemed to be born du퍼ng the marriage by the subsequent marriage of the father 없ld mother from the time of 바leir m없riage.
55. A cl피ld， any of his"her 파leal descendants or 감le legal representative of 없ly of them, may bring a legal action against his"her father or mother for acknowledgement. Also
,
an action claiming acknowledgement may be brought against 않le prosecutor wi바lÎn one year from 않le day on whicl1 the death of 감le fa않ler or mother becomes 뇨10wn.3. 'Freedom of Expression (art. 13)
56. Children’s freedom of expression 없ld gathering inform.ation is guaranteed under 강le Constitution presenting 바lat all citizens enjoy freedom of speecl1, the press, learr피ng 없ld the arts. A provision to prohibit licensing 없ld censorship is newly established 피 않le Constitution so as to prevent violation of human rights through activation of the supervisory 없ld critical function뇨19 of the press.
57. Right to freedom of expression is not only the core of sp퍼.tu떠
freedom
,
but also a cornerstone of a democratic society. However,
unlike the intrlnsic freedom of 바lought， the right to freedom of expression is not absolutely unrestricted, but can be restricted under 않le some social conditions. The Constitution clearly states 않le specmc duties and responsibilities pursu없다 to 남le exercise of this right by providing 바latneither speech nor 감le press shall violate 않le honor or rights of 0않ler
persons, or undermine public morals or social ethi잃， and that if speecl1
Civil Rights and Freedom 117
or the press violate the honor or rights of other persons, claims may be made for damages.
58. The Article 309 없1d 751 of the Civi1 Code are the major legal provisions re.맑Jlat뇨19 않1e incidents of abuse by overstepping 감1e inherent boundaries of speech 없1d ‘the press. A person who violates other’s reputation by means of 감1e newspaper
,
maga깅ne， radio or other publication with intent to defame is punished by penal servitude orimprisonm얹1t for not more than 감lree years or by a fine not exooeding one million won($ 1
,
250). A person responsible for injuring the reputation,
freedom or secrets of privacy of another 바lrough unlawful acts is liable to pay compensation for the damages resulted from that behavior. Other legal provisions conoorned regl꾀ate insurrection 뻐d induooment of foreign aggression, disturbanoo of the public peaoo or instigation to destroy the national order, 없1d dis떠bution of obsoone material, etc.
59. With respect to freedom of expression, the Constitution resmcts general basic rights
,
in which freedom of expression may be restricted by law only when neoossary for national security,
않1e m와nten없100 of public order or public welfare. Accor따ngly， 와1y neoossary and reasonable resmction on freedom of. expression is deemed to be allowed to a oortain extent u끄less it violates the essential content. When 않1e President issues an emergency decree, freedom of speech and press may not be subject to 않1e general principles described above 없1d is restricted by 않1eemergency decree. When the Ex압'aordinary Martial Law is proclaimed
,
바1e martial law commander may take speci떠 measures, as provided by law
,
by 않1e decree 찌감1 respect to freedom of press and publication.4. Freedom of Thought
,
ConscÍence 없ld Religion (art. 14)60. The provisions concerning 않1e right of 암1e child to freedom of thought, conscienoo 없1d religion refer to rights which, 뇨1 Korea, are guaranteed to every citizen 강lrough the provisions of the Constitution on
118 lnformation in Relation to the Articles of the Convention
freedom of conscience and religion. Although 않1ere is no stipulated provision to guarantee freedom of thought in the Constitution, it is interpreted that freedom of thought is included in 바1e notion of consC1ence.
61. Freedom of conscience includes freedom of not having any
enfor，않ment， pressure 없1d interference wi감1 respect to the decisions of conscience 없1d keeping silence in respect to such decisions. Accordi끄gly，
in 않i:minal cases, 바1e suspect or 바1e accused shall not be compelled to
test:펴 against him.therself.
62. Freedom of religion includes: freedom of belief by which one shall not be compelled by e화ernal influ앙1ces with respect to the belief 없1d
can express one’s religious ß와벼 freely; freedom of religious actions by which one may practice one’s belief such as praying
,
services,
reading ofS앉iptures， etc.; freedom of religious assembly and association by which one may assemble or establi밟1 any organization for religious p뾰poses;
freedom of mission by which one may propagate one’s religion and gather new believers; and freedom of religious education by which one may practice such education. Freedom of speech 없1d 않1e press provided in the Constitution is secured in religious activities. Each religious group is not be dis않iminated against in comparison with 0빠1er groups
없1d may produce 없1d dis'삶ibute publications.
63. The Civil Code provides that a person with parental authority has rights and duties to protect and educate his"her child, and guarantees
않1at a parent or legal guardian has 람eedom to educate his"her child with religious and moral education. It is not de밍ned natural, however,
m
않1e Republic of Korea that 않1e belief of a parent shall be succeeded by 않1at of his"her child. Even if students attend schools established by religious organizations,
they may have their own respective religion.Any adult or child ch∞ses his"her religion according to his"her own discretion 없1d free intention. However, under 않1e current system of
Civil Rights and Fr강edom 119
deciding sch'O'Ols, 함om elementary to high sch'O'Ol, except private elementary. sch'O'Ols, in which students are all'Ocated to 않le sch'O'Ols l'Ocated nearest t'O the student’s residence with'Out any c'Onsiderati'On 'On the student’s 'Ori얹ltati'On 뇨1 terms 'Of religi'On, students’ right to enj'Oy freed'Om
'Of religi'On is encr'Oached substantially by recei떠ng religi'Ous educati'On they d'O n'Ot want 없ld n'Ot receivi끄g what 않ley d'O w없lt.
5. Freedom of Association and of Peaceful Assembly (art. 15) 64. Under the C'Onstituti'On all citizens are guaranteed freed'Om 'Of assembly 없ld ass'Ociati'On. Licensing 'Of assembly 없ld ass'Ociati'On is n'Ot all'Owed. Peaceful assembly is instituti'Onally guaranteed. The Act
C'Oncern뇨19 Assembly 없ld Dem'Onstrati'On pr'Ovides that n'O pers'On may disturb a peaceful assembly 'Or dem'Onstrati'On 없ld disrupt public 'Order by meaíls 'Of vi'Olence, 뇨lt뻐idati'On 'Or 없ly 'O않ler means.
65. Freed'Om 'Of ass'Ociati'On 없ld freed'Om 'Of assembly may be res떠cted
by law, subject t'O the same conditi'Ons which apply t'O th'Ose concerning restricti'Ons 'Of freed'Om 'Of expressi'On. H'Owever
,
even when such restricti'On is imp'Osed,
n'O essentials 'Of freed'Om 'Or right is vi'Olated.Theref'Ore
,
while restrcti'On by law is a밟n'Owledged， limitati'Ons there'On are provided.6. Protection of Privacy (art. 16)
66. It is 'One 'Of 않le fundamental principles 'Of dem'O많'acy and the rule 'Of law 않lat n'O pers'On sh'Ould be subjected t'O intrusi'On 'Of 바le kind referred t'O in article 16. One 'Of 감le 'Objectives declared in 감le C'Onstituti'On is f'Or
g'Overnm밍lt to assure men 없ld w'Omen 'Of equal rights 없ld t'O safeguard the privacy 없ld f:없nily life 'Of 않le in바.vidu떠. ’rhe C'Onstituti'On
믿lar없lteeS freed'Om 'Of residence, freed'Om 'Of privacy and secrecy 'Of communicati'On. In case 'Of seizure 'Or search 피 a residence
,
a warrant issued by a judge up'On request 'Of a pr'Osecut'Or shall be presented.120 lnformation in Relation to the Articles of the Convention
67. These rights can only be restricted by law, when, as stated earlier, speech or the press is considered to violate the honor or rights of other
67. These rights can only be restricted by law, when, as stated earlier, speech or the press is considered to violate the honor or rights of other