북한주민 송환 법제 개선에 관한 연구 - 특별법 제정 방안 및 내용을 중심으로 -

Abstract

Expulsion Accident of two North Korean fishermen which took place in Nov. 2019 is the first case in which South Korean Government expelled North Koreans regarded as South Korean according to article 3 of Constitution. In my opinion, it is possible for South Korean Government to expel and repatriate North Korean in South Korea territory to North Korea. Because North Korean is quasi-foreigner in perspective of sui generis relation between two Koreas. However, there is no explicit legal ground. In this context, this paper suggests draft of law on repatriation of North Korean. This draft is applied to North Koreans in South Korean territory who have not expressed their intention to be protected by South Korea and who have expressed their intention to be protected by South Korean but whose intention is not genuine. North Korean shall be distinguished from North Korean escapees settled in South Korean territory. And this draft suggests some criteria for repatriation. Decision and enforcement of North Korean’s repatriation shall be conducted transparently and publicly. For this, third party or international organization shall participate in process of decision of repatriation and ascertain North Korean’s genuine intention. And three procedural rights provided in article 13 of International Covenant on Civil and Political Rights shall be guaranteed to North Korean. Meanwhile, current North Korean Escapees Protection Law is to be partly revised. It is necessary for article on non-repatriation of North Korean escapees to be newly stipulated. Because North Korean escapee is national of South Korea. And if law on repatriation on North Korean is enacted, some criteria of this law and current North Korean Escapees Protection Law will be duplicated. This conflict between two laws shall be coordinately solved.