출입국관리법상 출국명령의 적법성과 권리구제 -체류허가취소와의 관계를 중심으로-

Abstract

As the number of foreigners residing in the country increases, social issues related to foreigners, such as employment, housing, human rights, and crimes of foreigners, are becoming hot topics. Behind the social trend of trying to solve problems such as domestic low birth rate and labor shortage through the influx of foreigners, there are various prerequisite problems for foreigners, but the national and social response measures are still insufficient. Accordingly, when foreigners brought into the country are unable to adapt to society and commit crimes or it is recognized that there is a need to exclude them from our society for other reasons, the administrative office takes measures to deport them, deportation and departure orders are representative. Meanwhile, foreigners residing in the country must be granted a legal status of sojourn and maintain it valid, but the status of sojourn granted to foreigners may be changed or canceled for various reasons. However, if a foreigner’s status of sojourn is revocated, if he or she is unable to change the status or receive a new one, he or she will no longer be able to stay in the country, and the administrative office will send the foreigner to his/her home country through a departure order. At this time, related issues are raised as to whether the administrative agency must strictly comply with procedural regulations when carrying out administrative actions such as ordering departure of foreigners, and the validity of the relevant disposition if these are not followed. Compliance with procedures for administrative dispositions is intended to ensure fairness and reliability of administration and to protect the rights of the other party, but it is questionable whether compliance with such procedures is also required for matters related to the immigration and departure of foreigners. Accordingly, in this document, we examine whether the application of the Administrative Procedure Act is excluded in the revocation of permission of stay among matters related to the immigration and departure of foreigners and whether the validity of the revocation of permission of stay is recognized when statutory procedures are violated in the process of such disposition, the effect of subsequent departure orders was reviewed according to the legal principle of succession to defect. Furthermore, the problem of terms being used interchangeably in immigration and departure management administrative practice was examined.