‘Republikflucht(국가탈출죄)’의 법리 및 탈북자문제에의 적용

Traditionally, totalitarian or communist countries have severely restricted their citizens’ departure for other countries. Still after the demise of the Cold War, North Korea, one of the last notorious Stalinist countries, sticks to its restrictive policies on the flow of information and domestic and overseas travels. In this context, the German legal term ‘Republikflucht (crime of flight from the republic)’, which was developed and utilised during the Cold War era, is also still valid and meaningful in connection with the so-called North Korean Escapee (NKE) case. The concept of ‘Republicflucht’ or ‘illegal departure or unauthorised stay abroad’ requires two conditions in order for asylum-seekers to qualify as political or Convention refugees. Firstly, the country of origin must impose ‘severe penalties’ on nationals who depart from the country in an unlawful manner or remain abroad without authorisation. Secondly, the person concerned must show that his/her motives for leaving or remaining outside the country are related to ‘his/her actual or imputed (attributed, perceived, presumed, implied, ascribed, or passive) political opinions’. This ‘reviving’ concept is not outside the legal definition of refugee under the 1951 Convention, but, as can be seen from the above, it actually tries to conform with the existing refugee definition. Recently, many European and American States have formally recognised NKEs as refugees. The issue of ‘Republikflucht’ can again be utilised there by applying Articles 62 and 233 of the North Korean Criminal Code to their cases, and can also be utilised here in Korea, as a State that has an direct interest in the fate of NKEs, and as a State that has just started receiving the flow of asylum-seekers or refugees from all over the world.