출입국관리법상 ‘보호’와 외국인의 신체의 자유

Abstract

The purpose of this paper is to point out the part the Immigration Control Act ("ICA") that violates the personal liberty of foreigners, etc. in the protection (= detention) procedures that accompany the expulsion of illegal residents specified in the Act, as well as to present legal improvement measures where necessary. This paper is summarized below. Regardless of whether a foreigner stays illegally in the country, the body (personal liberty), which is a human right, is recognized as a subject of freedom. Therefore, foreigners are also protected by substantive and procedural law regarding personal liberty based on Article 12 of the Constitution. Under the ICA, the following protection procedures for foreigners must be examined for constitutionality: ① 'Request for a decision by an objective/neutral organization' based on the principle of due process, ② the obligation to notify the person concerned of reasons for arrest and detention and of the right to get lawyers' help, as well as the obligation to immediately notify the family, etc. of reasons, date/time and place for arrest and detention, under Article 12(5) of the Constitution, ③ Request for ensuring an opportunity to submit opinions and data in accordance with the due process principle, ④ Request for effective protection of rights under Article 12 (6) of the Constitution, and ⑤ Principle against excessive restriction. This paper argues that the following does not conform to the above constitutional examination standards: ⓐ The part where immigration officers, not judges, determines whether to protect foreigners in accordance with ICA, ⓑ the part where the ICA protection procedures do not provide the obligation to notify the person concerned of the right to get lawyers' help, and provide that a lead time of up to three days for notification to family, etc. is allowed, ⓒ the part where the ICA protection procedures for compulsory banishment execution do not provide that a provision is not stipulated to give an opportunity for the person to submit his opinions, ⓓ the part where The Habeas Corpus Act, based on ICA, excludes protected foreigners from the object of remedy request, and ⓔ the part where ICA does not specify the protection period limit for the person subject to forced banishment but makes it possible to protect the person indefinitely. Legislators should conduct a comparative examination of relevant laws of foreign countries with regard to the protection measures under ICA that infringe on foreigners' personal liberty as described above, and should make legislative reforms consistent with our reality.