난민사건 최근 하급심 판례 분석

Abstract

In this paper, recent lower court rulings that draw attention to the legal principles of the Refugee Act are examined. Whereas there were some rulings that made forward-looking judgments referring to the international standards for refugee conventions and to international human rights laws to faithfully implement the purpose of refugee protection, there were also other rulings that interpreted the requirements for refugees excessively strictly, with arbitrary interpretations far from international standards. The ruling (Seoul Administrative Court Decision 2017Gudan35289 Decided May 10, 2018) that despite the fact that the person was sentenced to death due to conversion, there was no risk of persecution can hardly be seen as a correct interpretation. The possibility of persecution cannot be denied only because the law is not enforced and the circumstance that persecution can be avoided by withdrawing the act of apostasy should not be considered when determining the possibility of persecution. The rulings (Seoul Administrative Court Decision 2017Gudan80458 Decided September 19, 2018 and Seoul Administrative Court Decision 2019Gudan52440 Decided October 16, 2019) that did not recognize the refusal of conscription as an imputed political opinion are not valid in that they overlooked the fact that imputed political opinions can also be a reason for persecution, and the refusal of conscription per se can be recognized as an expression of a political opinion. On the other hand, the ruling (Seoul High Court Decision 2021Nu34345 Decided April 9, 2022) that recognized refugee status because of the risk of honor killing, and the ruling (Seoul Administrative Court Decision 2021Guhap 78282 Decided August 18, 2022) that the deportation order for recognized refugees violated the non-refoulement principle interpreted the requirements for refugee recognition and the non-refoulement principle more proactively than the mainstream trend in the lower courts. In addition, the ruling (Seoul Administrative Court Decision 2020Gudan19418 Decided May 27, 2021) that recognized the right to family unity of the parents of refugee minors was meaningful in that it recognized the right to family unity beyond the scope stipulated in the Refugee Convention and the Refugee Act. The fact that cases have piled up due to refugee applications for the purpose of extending their stays and the increased burden cannot justify errors in the judiciary’s legal principles. It must be ensured that the courts interpret and apply the Refugee Convention accurately and faithfully.