귀순의사를 표시한 북한 범죄혐의자의 강제북송에 관한 법적 고찰

Abstract

At the end of October 2019, two North Korean squid fishing crew members killed a number of their fellow crew members in the East Sea and were captured by the South Korean military on November 2, 2019. Soon after, three days after the investigation, the forced repatriation was decided against their will, and five days after they were arrested, a case of forced repatriation occurred through Panmunjom. This unprecedented case raised a number of legal issues that should be carefully considered. First, considering the characteristics and reality of inter-Korean division, West Germany’s precedent, human rights and humanitarian principles, ‘expression of intention to defect to and obey the Republic of Korea (ROK or South Korea)’ can be seen as an intrinsic requirement for North Korean defectors to recognize ROK’s nationality. This is only a kind of procedural requirement or a requirement to fulfill the state’s duty to identify nationality. But it does not mean adding a separate substantive requirement beyond the requirements required by the Nationality Act of South Korea. With this opportunity, it is necessary to legislate the requirements and procedures for recognizing the ROK’s nationality of North Korean defectors. Second, the concept of “authenticity” of a will to defect to ROK could include a policy decision on whether it is worth protecting the North Koreans beyond the presence or absence of an indication of intention, which may involve subjective and arbitrary judgments. Therefore, demanding the authenticity of a “will to defect to ROK” for the recognition of ROK’s nationality should be regarded as unconstitutional on account of arbitrarily reducing the personal jurisdiction of the ROK and the state’s obligation to protect people under Article 10 of its Constitution. Third, a joint investigation by government-related agencies to determine the authenticity of intention of defection is a kind of administrative investigation, and judgment of the joint investigation should be limited to identifying whether or not it is disguised. In any case, the existence or absence of a crime such as murder cannot be definitively determined as a result of an administrative investigation. It is clear that an administrative investigation of related agencies in this case did not comply with the principle of presumption of innocence and due process of law in light of all the relevant circumstances. In particular, notification of a right of refusal to testify against oneself and guarantee of a right to receive legal assistance from lawyers were not carried out in this case. Therefore, confessions or related statements of North Korean defectors do not have the evidence capacity in criminal proceedings. Fourth, the forced repatriation, backed up by the Moon Jae In government’s conclusion that the North Korean defectors were felons who committed murder, based on the results of an administrative investigation, can be evaluated as an unconstitutional and unlawful decision that the administration unilaterally made without judicial intervention or control. In addition, a right to resort to appeal procedures, such as filing an objection and requesting a trial, was not recognized. In order to prevent such measures from recurring in the future, it is necessary to amend related laws and regulations to seek democratic control over the procedures and process of joint investigations of related agencies, such as introduction of objection procedures.