난민인정을 위한 ‘충분한 근거가 있는 공포’의 개념과 증명의 정도에 관한 고찰

The article 2 (1) of the Refugee Act calls for a ‘Well-Founded Fear’ of being persecuted as a requirement to recognize refugee status, which is the most important factor in determining whether refugee status is recognized. The traditional approach to the meaning of well-founded fear requires both subjective and objective requirements; a refugee applicant need to prove that he has a subjective emotion of fear and such feelings should be supported by objective circumstances. In this regard, since it is virtually impossible to determine the subjective emotional state, there is criticism that the subjective requirement is not necessary and that the fear should be identified with sufficient grounds in objective terms as the meaning of predicting future risks. Considering the purpose of the Refugee Convention and the literal meaning of fear, which includes aspects of forecasting for the future, an attempt to objectively grasp the well-founded fear in terms of forecasting the future is reasonable. In specific cases, ‘well-founded fear’ itself is a major fact to be proven to recognize refugee status, and the subjective and objective elements of refugee applicants may be treated as indirect facts to acknowledge the above major facts. Furthermore, if a refugee applicant can establish that there is reasonable possibility of being persecuted by considering indirect facts, a well-founded fear would be considered as exist. The Supreme Court of Korea has never explicitly expressed a judgment on the concept and requirements of well-founded fear. However, it is not confirmed that the refugee status was not recognized just because the subjective fear of the refugee applicant is not exist. Also, the cases may be understood by considering the subjective and objective factors comprehensively as indirect facts to acknowledge the well-founded fear. As various types of cases accumulate in the future, a study on the concept and the requirements of well-founded fear will be followed.