(미등록) 외국인 아동의 출생등록권의 헌법적 보장과 그 실현을 위한 입법적 과제

Abstract

Birth registration is a status system that begins a person's relationship as a member of a society and cannot be considered separate from the individual's personality formed through social relationships. Birth registration also serves the function of protecting the life and body of infants from mothers at risk. Foreign children should also be subject to the status system of birth registration, and their life and physical safety should be protected from families in crisis. In particular, in the case of unregistered foreign families, as there is uncertainty about their social status, the need to protect the lives and physical safety of their children also increases. The right to birth registration serves as a prerequisite for the realization and protection of fundamental rights characterized as universal human rights, including the right to personality, freedom of family life, the right to life, and protection from physical harm. Given the sufficient human rights characteristics associated with the right to birth registration for foreigners, it can be established as a constitutional right. In considering the content and features of foreigners' right to birth registration and its practical guarantees, several points should be taken into account when legislating on the birth registration of foreigners. Firstly, the right to birth registration, functioning as a constitutional right, contributes to the life and safety of children as an identity registration system that should be acknowledged for all foreigners. Legislation embodying the right to birth registration should be sufficiently specific to ensure the registration rights of foreign-born children before the law's amendment and the rights of undocumented foreign children. Secondly, given the close connection between the right to birth registration and family relationships based on the right to family life, it is desirable that the procedure for registering the birth of an alien reflects not only the alien's birth but also their status under family law. Thirdly, the birth registration system needs to be organized flexibly, allowing foreign children facing difficulties obtaining birth registration documents to be registered. Fourthly, the birth registration system should be organized to emphasize the immediacy of birth registration. Lastly, the system should be structured to address concerns of undocumented alien parents, enabling them to register their children without fear of enforcement. This involves separating undocumented alien enforcement agencies from birth registration agencies, preventing the sharing of birth registration information, and imposing penalties on those who misuse birth registration information.