中國 內 脫北者의 法的地位와 人權保護에 대한 硏究

North Korean defectors are victims of the division of Korea into north and south, which is thought as a tragic situation. Most of North Korean defectors leave for and stay in China. And they suffer from severe infringement of human rights before entering into South Korea. Korea has to worry and solve the problem of infringement of human rights of North Korean defectors all together as ‘one nation’. Nowadays most of North Korean defectors leave for and stay in China. In terms of human rights, their legal positions are as follows. According to a territory provision prescribed in Article 3 of the constitution and Article 100 of the Establishment constitution and Article 2 of the temporary ordinance for Korean Nationality, North Korean defectors are eligible to acquire citizenship of a Korean and it is reasonable to consider North Korean defectors as South Korean. However China has approved of North Korea as a country which joined United Nations. Therefore North Korean defectors in China are people with dual nationality belonging both to South Korea and to North Korea. Due to its traditional amicable relations with North Korea, however, China judges the North Korean defectors to be North Koreans according to the principle of effective nationality and the Nottebohm Case. For these international circumstances, South Korea is not able to protect North Korean defectors' human rights by claiming that they are Korean citizens. In order to solve this problem in a legislative way, it is worth to examine legislation examples of West Germany before the reunification of Germany. According to Article 116, clause 1 and Article 16, clause 1 of the federal fundamental law of German, West Germany let the principle of a sole nationality, open door policy, the federal law on persecutors and refugees and the prevention law of aftermath of war applied to everyone of German extraction prior to the division of territory and their spouses. By doing so, West Germany regarded them as its citizens and protected them when they entered the territory of West Germany. Hereafter, therefore, the Korean Government also needs to make explicit constitutional provisions of protection of North Korean defectors and protect them when they enter South Korea as did West Germany with the special law. In this respect, Article 2, Number 1 of the law in force on protection of North Korean defectors and support of settlement is not reasonable in that it sets improper bounds to protection of human rights of North Korean defectors by limiting ‘a defector’ to a person who does not acquire foreign citizenship after he/she leaves from North Korea. Thus this provision has to be revised like that of Germany so that more North Korean defectors can be protected by being recognized as refugees deserving protection when they enter South Korea from China and so on. Also the Korean Government should not remain idle when China repatriates North Korean defectors in China by force regarding them as economic refugees or people who commit illegal crossing the borders and lets them in danger of capital punishment. Therefore the Korean Government needs to closely cooperate with other nations like U. S. A. and international organizations, persuade China to regard North Korean defectors in China as refugees in an agreement, and, afterwards, call on China to observe the principle of Non-Refoulement prescribed in Article 33, clause 1 of the Convention Relating to the Status of Refugees in 1951 according to Article 103 of the U.N. charter, as a U.N. member.