외국인의 법적 지위에 관한 헌법조항의 연원과 의의 － 제헌국회의 논의와 비교헌법적 검토를 중심으로 －

The Constitution of the Republic of Korea declares in Article 6(2) that “the statusof foreigners shall be protected as prescribed by international law and treaties.” In1948, referring to Article 10(2) of the Italian Constitution promulgated in 1947 andenforced in 1948, its original provision, Article 7(2), was adopted in the first KoreanConstitution. When it comes to the legal status or fundamental rights of foreigners inKorean legal system, Korean constitutional court and constitutional law scholars,however, have relied on conventional theory in Germany and Japan by distinguishingrights of men (Menschenrechte) and of nation (Bürgerrechte). If one takes into accounttheir due deliberation of the first Korean national assembly members and itsdistinctive characteristics of the provision in the Korean Constitution, constitutionaltheories and court opinions concerning the legal status of foreigners in Germany,Italy and Japan cannot be applied intactly in Korea, for those countries have theirown constitutional provisions and history. According to Article 6(2) of the Korean Constitution, the legal status of foreignersis guaranteed in the capacity of constitutional rights and in the quantitative scope oftreaties and customary international law. In the aspect of qualitative level, all theforeigners should be treated equally to Koreans, which is a general rule of contemporarypublic and private international law. The rules and principles of international human rights treaties to which Korea has acceded and customary internationallaw which Korea is obliged to observe are incorporated into Korean legal systemwith the purpose of protecting constitutional and fundamental rights of foreignerswithout any additional domestic legislation.