귀순 어민 강제북송 사건의 인권법적 고찰

Abstract

The forced repatriation of two North Korean defectors in November 2019 was an unprecedented case of deporting North Korean defectors who clearly expressed their intention of defection to South Korea "against their own will." This was an "anti-constitutional" and "anti-human rights" treatment that thoroughly trampled on the noble "choice of freedom" and "will to defect" materialized by crossing the South-North border, namely, the Northern Limit Line(NLL) on a fishing boat at the risk of life. So the measure could be called an illegal "national violence." Therefore, it should not be repeated any more in the future. The Moon Jae In government tried to justify the unlawful deportation, citing the authenticity of intention of defection. However, the concept of authenticity goes beyond the existence and absence of an expression of intention and includes a policy judgment on whether it is worth protecting the North Korean defectors. There is a hazard that subjective and arbitrary judgments will be interposed here. Therefore, the authenticity should not be unilaterally judged and determined by some senior officials in the secret room with limited information. Such a judgment should have at least gone through the procedures of official organization such as the "North Korean Defector Protection and Settlement Support Council" or relevant judicial procedures if possible. In this regard, appeal procedures, such as filing an objection and an administrative lawsuit should be given to the victims. It is also clear that in order to justify forced repatriation, the provisions on "criteria for protection decision" or "non-protection decision" in Article 9 (1) of the "North Korean Refugees Protection and Settlement Support Act(abbreviated hereafter as North Korean Refugees Act)" or the provisions on forced expulsion of foreigners under the "Immigration Control Act" cannot be invoked. This is because the legislative purpose of the North Korean Refugees Act is to protect North Korean defectors and support their settlement, not aiming at determination of the ROK's nationality, forced deportation etc. As a matter of course, there is no expulsion clauses in the Act. Moreover, North Korean Refugees are different from foreigners under the ROK(Republic of Korea)'s Constitution. So articles on deportation in the "Immigration Control Act" cannot be applied to North Korean defectors because of the difference in the subject of application. From this point of view, the Moon Jae In government has committed a serious mistakes in the management of defected fishermen. With this incident, it was confirmed that the institutionalization of the ROK's nationality recognition procedure for North Korean defectors was urgent. To this end, the Nationality Act and the North Korean Refugee Act are required to be revised. It is reasonable for the Minister of Justice to recognize the ROK's nationality immediately if he/she enters into the ROK's jurisdiction and expresses his/her intention to defect to the country. Under the North Korean Refugee Act, the decision to protect North Korean defectors has the meaning of "confirming" the recognition of ROK's nationality, and it is proper to understand that establishing of the family relations register and resident registration are taken as a follow-up measure of that recognition. The most serious part to be addressed in this case is the violation of human rights against defected fishermen who disgraces ROK's national prestige as a country poor in human rights. This is because far worse treatment than South Korean criminal suspects who committed crimes in Korea was given to the two North Korean fishermen who defected to the ROK and must be regarded as the South Koreans in the perspective of ROK's Constitution. De facto arrest and detention without a warrant, ignoring due process of law, violation of the principle of presumption of innocence, infringement of freedom of residence transfer and right to life are representative examples. In the future, the South Korean government should make every effort to ensure the same level of human rights as the South Korean people for North Korean defectors who clearly expressed their will to defect to the South, taking lessons from this case. It is the way to realize 'rule of law' in North Korea policy and North Korean defectors' administration, and it is also in line with the ROK's national dignity in the world.