출입국관리법상 ‘보호’ 및 ‘강제퇴거’와 외국인의 기본권 보호 - 헌재 2012. 8. 23. 2008헌마430 결정에 대한 평석 -

Immigration officials, pursuant to the Immigration Control Act, can, without a warrant issued by judges, detain undocumented foreigners and (urgently) protect them. They can also execute a forced expulsion and repatriate foreigners to their countries, although lawsuits are undergoing seeking the cancellation of the order of forced expulsion. In this connection, protection under the Immigration Act is an administrative physical detainment of the person concerned, but is tantamount to apprehension and imprisonment under the criminal proceedings, thus limiting the freedom of foreigners. Thus, the constitutional principle of prior warrant system derived from the principle of due process of law should apply, and the protection system under the Immigration Act which does not stipulate a provision on such warrant system is considered going against the Constitution of Korea. Also, although lawsuits seeking the cancellation of order for forced expulsion and filing for the stay of execution are being processed with courts, if forced expulsion orders are executed, foreigners will even miss an opportunity to participate in above proceedings, losing their living grounds. Then, the legislation that does not stipulate an execution stay system for such occasions may be considered violating the Constitution. However, the Constitutional Court of Korea, while not ruling on these issues, ruled in its decision '2008Hun-ma430, August 23, 2012' only on the issues whether the execution of urgent protection and protection order against undocumented foreigners violates the Constitution, and whether, even while lawsuits are underway with courts seeking the cancellation of forced expulsion orders, the execution of forced expulsion orders violates the Constitution. Thus, this paper examines whether the above constitution violation theory, in the case decision above, could have been accepted as a incidental norm control (Constitutional Court Act - Article 75 - Section 5).