출입국관리법상 수사목적 출국금지의 헌법적 한계 - 특히, 피내사자에 대한 출국금지를 중심으로 -

Abstract

Over the last ten years or so, the number of cases of prohibition of departure from the country ("prohibition of departure") under the Immigration Act is increasingly growing. Reasons for the prohibition of departure under the Immigration Act are categorized largely into criminal reasons (criminal investigation, criminal trial, non-execution of penalty, non-payment of fine and additional collection amount) and into reasons for default of taxes. Of this, reasons for criminal investigation take the largest portion of criminal reasons as well as of total reasons for prohibition of departure on average (which constitute the grounds for prohibition of departure). The investigative prohibition of departure from the country is warranted under Article 4 - Paragraph 2 of the Immigration Act, and this provision may prohibit “the person who is not deemed to depart from the country for criminal investigations” from leaving the country for up to one month. The problem is how to determine those subject to prohibiton of departure for the purpose of criminal investigations under this provision, and in particular, controversies arise over whether inquiriees are included in the category of those subject to prohibition of departure. Immigration administration and judicial precedents see that those subject to prohibition of departure for investigations under this provision include inquiriees, making the provision the grounds for prohibition of departure. In this regard, it is argued that inquiriees are not seen as included in the category of this provision, and that the immigration administration, which subjects inquiriees to prohibition of departure under this provision, infringes on inquiriees’ freedom of departure. In this regard, there is not yet decision made by the Constitutional Court or serious research by the academia. This study, from the viewpoint of agreement with the above critical opinion, argues that the provision of prohibition of departure for the purpose of investigation violates the excessive prohibition principle, thus infringing on the freedom of departure. Immigration administration subjects not only inquiriees under this provision but also holders of invalid passports and persons suspected of minor crimes to prohibition of departure. This problem is also discussed as violating the excessive prohibition principle.