出入國管理法上 外國人 保護命令 및 强制退去 規定의 問題點과 그 改善方案 - 헌법재판소 2016. 4. 28.자 2013헌바196 결정에 대한 평석을 겸하여 -

Abstract

The decision of the Constitutional Court in 2013 is based on the premise that if the Constitutional Court is required to constitutionally clarify the Constitutional Court's judgment or constitutional appeal, The Court held that the Protective Order under the Protective Order had already been terminated without applying the exceptions recognized. Of course, the essence of the judgment of the Constitutional Court, which strictly presupposes the essence of the trial rather than the general constitutional amendment, would have worked, but the Constitutional Court abandoned the judgment of the Constitutional Court over the rights of the foreigners' It should be criticized at first. Above all, in terms of the status and rights of foreigners residing in Korea and at least basic rights such as life and body, they should be guaranteed to the utmost without discrimination against the Koreans unless they impede the maintenance of national security and order. In this respect, the protection order system under the current Immigration Control Act, which can virtually limit the freedom of the body indefinitely, should be improved. Therefore, it is important to revise the law in the future so that the immigration control law will have an absolute time limit for protection orders, and warrants and judicial judgments on the legality of initiation, extension and maintenance of protection orders. In addition, by removing the exclusion section of the protection system under the Immigration Control Act from the reason for exclusion of the current human protection law, the detention (protection order) of Article 63 of the Immigration Control Act itself can be rescinded at any time in accordance with Article 3 of the Personal Protection Act. Guarantee is significant.