Refugee’s Legal Status From Korean Constitutional Adjudication - Constitutional Review of 2008Hunba161 -

Since the establishment of the Constitutional Court of Korea, there has been only one case that concerned a refugee to date—that is, 2008Hunba161, which took place in 2009. However, rather than addressing the eligibility requirements to receive refugee status, this case was a constitutionality complaint case (hunba) that addressed the formal requirements to determine “whether the law in question satisfied the prerequisite to a trial.” This sole case was dismissed without substantive judgment. Under South Korea’s constitutional system based on the principle of concrete norm control, “prerequisite to a trial” is the first requirement and a mandatory requirement in a constitutional trial. However, without even a substantive judgment on the applicability of the clause, “well-founded fear of being persecuted,” 2008Hunba161 was dismissed on the basis that it did not meet the “prerequisite to a trial,” failing to fulfill the constitutional function as the “last resort to protect basic rights.” Albeit the nature and characteristic of constitutional adjudication is an “incomplete adjudication,” the denial of refugee status recognition implies that there exists no safety net for applicants, demonstrating a desperate need for a serious and substantive constitutional interpretation. With 2008Hunba161 at the center of discussion, in this paper, the “prerequisite to a trial” and the eligibility requirement of a refugee are critically examined in a constitutional context.(the end)