난민신청자 체류규정의 공법적 쟁점과 개선방안

Abstract

The Refugee Act of 2013, based on distinguishment between in-country application and port of entry application, declares that in-country applicant could remain in the territory of Korea until the denial of the refugee status gets final (especially when the administrative or judicial review proceeding is pending on the denial, until that proceeding gets closed) (§ 5 clause 6 of the Act). This ‘Could Remain’ clause looks alien-friendly at first sight, but requires some clarifications. First, who can claim the benefit of the clause? In-country applicant only or port of entry applicant, too? The answer of the Refugee Act is the former. But the terminology ‘alien who is already in the territory’, in other words, in-country applicant is not clear enough to distinguish them from port of entry applicant, because to be physically in the port of entry can be said to be physically in the territory, too. And further, when a port of entry applicant get admission, there is no difference between the port of entry applicant and the in-country applicant, so we can find no reasonable answer to the question why the Refugee Act discriminate against the port of entry applicant in the context of ‘Could Remain’ clause. Secondly, what is the exact meaning of the § 5 clause 6? On one hand, some suggest the words of the text should be interpreted somewhat negatively, as that of non refoulement. On the other hand, some insist that the words of the clause should be given more positive meaning, that is, of asylum or temporary permission to remain. Considering that the Refugee Act of 2013 has distinctive clause of non refoulement, that is, § 3, it would be more logical that the ‘Could remain’ clause requires something more than the non refoulement of an alien. Thirdly, the legal nature of adjudication procedure of the Refugee Act is not clear(§ 21). If the procedure has been designed as a special administrative appeal, the level of independence of the adjudicating body should be more hightened. And finally we need to focus on the fundamental restructuring of the Refugee Act which has inefficient dual dichotomy approach, such as the dichotomy of in-country application and port of entry application, and the dichotomy of the recognition of refugee status and the asylum decision.