Seoul Administrative Court Rules it is Illegal to Not Allow Citizen to Utilize Own Name Spelling in Roman Characters on Korean Passports

The Seoul Administrative Court (2023GuHap83301) ruled that the decision of the Korean Ministry of Foreign Affairs to reject a Korean passport change application because the English spelling of the Korean name on the Korean passport did not conform to the Romanization Rules of the Korean Ministry of Foreign Affairs violated the “right to pursue happiness and right to personality” protected under the Korean Constitution.

I worked for the Constitutional Court for six years in my early years as a lawyer, I am happy to see that all courts in Korea are considering the rights of citizens and expat residents in Korea. This seems like a minor issue to many, but to this family it was an issue that they felt so strongly about that they chose to take the matter to court. I have noticed in my over two decades in Korea that the Korean court system is more willing to rule based on the rights embedded in the Korean Constitution and not, simply, based on statutory law.

Facts
1. The Korean Passport applicant was born in the Republic of Korea in 2020. In 2023, the parents of the applicant applied for a passport for their child with an English name that did not conform to the Romanization Rules adopted by the Ministry of Foreign Affairs.

2. The passport issuing authority changed the name to the name utilized in the Romanization Rules.

3. The applicant’s parents requested the passport changed to the name originally applied for. The Ministry of Foreign Affairs refused the application noting that: “the reason in question does not correspond to Article 3-2, Paragraph 1 of the Korean Enforcement Decree of the Passport Act, so it cannot be corrected.” Article 3-2, Paragraph 1 of the Passport Act Enforcement Decree stipulates that “in any of the following cases, the Romanized name on the passport may be corrected or changed upon application.” Subparagraph 7 of the same paragraph stipulates that “in cases where the Romanized name is to be changed before using the initially issued passport.”

5. The applicant departed from the country immediately after receiving a notification from the Ministry of Foreign Affairs that the change was not possible. The applicant filed an administrative lawsuit after returning to Korea.

Seoul Administrative’s Court Decision
The Seoul Administrative Court noted that: “Article 3-2, Paragraph 1 of the Passport Act enumerates exceptional circumstances to allow the originally included English name to be changed to a different name . . .This is intended to flexibly allow name changes depending on the applicant’s circumstances . . . It is unfair to ignore such intention and strictly apply the Romanization method to deny the change . . . The reason for strictly restricting the change of English name is to secure the external credibility of the passport of the Republic of Korea, but the change cannot be denied unless there are circumstances that could be abused for crimes, etc.”

The Court noted that the main reasoning for this judgment is the Korean Constitution which states that: “all citizens are guaranteed dignity and value as human beings and have the right to pursue happiness . . ..Determining how to write one’s name is also an area of ​​one’s self-expression and autonomy.”

The Court, also, denied the procedural/timing argument of the Ministry of Foreign Affairs noting that the complainant “had an overseas schedule scheduled in the near future when he applied for the passport . . . Even if a passport with a name different from the one he wrote himself had been issued, it would have been realistically difficult to delay the issuance by raising an issue about this.”

by Sean Hayes

Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only a few non-Korean lawyers as a Top Attorney by AsiaLaw. Sean is regularly quoted by leading international media sources, including the Wall Street Journal, New York Times, France 24, and Bloomberg.

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