보호인가 구금인가?- 출입국관리법상 강제처분 비판

Abstract

This article is about residence management - so called ‘illegal residence’problem which dealing in the Immigrant Control Act. Illegal Immigrant is the person not being a citizen of the country entered in to a that country without a valid sanction or continue to stay in a country after the expiry of his valid stay in that country, so it is different from smuggle (attempt an illegal entry into a country). The purposes of this article are studying criminal problems of illegal foreigner’s protection (detention), criminality of illegal stay(overstay) itself and due process of detention. The process, for example, arrest, custody, detention and forced removal of illegal foreigners’ deals in special administrative process that is different from criminal process. But illegal stay is an offense of Immigrant Control Act that means criminal conduct which is controlled by criminal law and criminal procedure law. In practice, the urgent detention process prescribed by the Immigration Act belongs to the arrest or restriction process in article 12 of the Korean Constitutional Law. (Article 12 (1) All citizens shall enjoy personal liberty. No person shall be arrested, detained, searched, seized, or interrogated except as provided by Act. No person shall be punished, placed under preventive restrictions or be subjected to involuntary labor except as provided by Act and through lawful procedures.) That means individual foreigner has the right to a lawyer, to be checked by judge and to request an arrest warn. This personal liberty is essential content of Korean law system. So what is the protection? In Immigrant Control Act, there is the term ‘protection’ but its means ‘detention’. And it is said that the ‘protection’ is detention that is limiting the personal liberty. That is language fraud. The illegal foreigners should enjoy basic human rights like civil liberties and rights of the criminally accused. Moreover they have the right not to be discriminated owing to their illegal stay in Korea without reasonable cause. In Practice, law enforcement of illegal foreigner causes many problems because of the incompleteness of the law and assault by unauthorized person and so on. That is because of vagueness of the law enforcement’s range. That is very serious human rights abuse, but it is not disclosed because they are ‘foreigner’. Our law system guarantees the due process. Even if he is foreigner (illegal foreigner), he has to “protect” by constitutional law. That speaks foritself. (That is axiomatic)