난민인정절차 중 신빙성 평가의 재구성 -‘박해를 받을 우려가 있다는 충분한 근거가 있는 공포’의 입증을 중심으로

The need to protect refugees demands a study on how a reinforced migration control (unrelated to the concept of refugee), negative perception towards refugees, and unique characteristics concerning refugees affect refugee recognition procedures. The starting point of such study will be interpreting and proving a “well-founded fear”, which constitutes the core element of the refugee definition, and the comprehensive evaluation of what role “credibility” plays here. In proving a “well-founded fear”, the special context surrounding refugees, such as difficulty in obtaining evidence and cultural differences, should be taken into account. In addition, this special context should be incorporated into the language of evidence law. The duty of the examining authority to ascertain and evaluate all the relevant facts refers to partial transfer of or relief from the burden of proof. The “benefit of the doubt” given to refugee claimants’ statements stands for the transfer of or relief from the burden of proof and lowering of the standard of proof. The burden of establishing a “well-founded fear”, i.e. the degree of likelihood of persecution, must remain lower than the level of “more probable than not.” As for the issue of credibility, an examiner should fully consider the unique circumstances under which refugees are placed, such as trauma, in examining credibility of the statements given by refugee claimants, and not of the refugee claimants themselves. In Korea, courts have made decisions, which indicate an underlying presumption that an overwhelming number of migrants, who are not refugees, are currently taking advantage of the refugee system with economic motive, etc. And in many cases, evaluation of the refugee claimants’ general credibility and the subjective evaluation of objective situations have been used to support that presumption. In conclusion, it can be said that the refugee recognition procedures have been distorted by the external elements, such as the State’s tendency to tighten border control and the perception that presumes refugee claimants to be economic migrants intent on exploiting the system, through its evaluation of refugee claimants’ credibility. In order to substantially protect refugees, the unique circumstances refugees are put under should be fully reflected in interpreting the term “well-founded fear” and in its substantiation, and the change of perception and institutional reform should be pursued in order to minimize the intervention of external elements beyond the bounds of the relevant concept.