외국인 보호 및 강제퇴거절차와 구제절차에 대한 공법적 고찰

Abstract

With the increase of alien activities within Korea, the matters of alien protection and expulsion have become a social problem. Expulsion, as stipulated in the Immigration Control Act, is a serious restriction that deprives the livlihood of those aliens who have entered the country voluntarily. Due to the extraordinary nature of aliens and the fact that gaining access to remedial measures is virtually impossible, no one with the exception of a few civic groups, have raised the issue at all. The purpose of this work is to examine from a public law perspective the procedural aspects of the Immigration Control Act concerning expulsion. In this regard, it is critical to study the implications of Article 12 of the Constitution which protects personal freedom. Generally, the warrant requirement of the Korean Constitution only applies to investigation procedures. Therefore arrest, detention, seizure and search in the process of expulsion are not considered to be unconstitutional, even if they are carried out without a court-issued warrant. However this does not mean that due process of law can be disregarded. In order for the expulsion procedure to become a substantive hearing, legislative changes should be introduced, including the separation of investigation procedures from legal proceedings, as well as the granting of neutral and independent powers to the judicial institution responsible for such cases. Although the Constitution is read as not applying the warrant requirement in administrative procedures, paragraph 6 of Article 12 plays a complementary role by guaranteeing post hoc judicial remedies for arrest cases. The legal concretization of such an approach outside the realm of criminal procedural law is the Habeas Corpus Act. Unfortunately the provisory clause of Article 2 of the Habeas Corpus Act excludes the most vital remedy for personal freedom with regard to those protected by the Immigration Control Act. This is a flagrant violation of the Constitution and therefore necessitates an amendment.