출입국관리법상 강제퇴거 집행을 위한 보호 제도의 개선입법 방안 - 헌법재판소의 최근 결정을 반영하여 -

The Constitutional Court has ruled that Article 63(1) of the Korean Immigration Act, which allows for the detention of foreign nationals in detention facilities until they can be extradited, violates the principles of proportionality and due process and thereby infringes upon the fundamental right to physical freedom. The Court has decided to continue applying this provision until there is a legislative improvement by May 31, 2025 (Constitutional Court decisions 2020Hun-Ka1 and 2021Hun-Ka10). This marks the Constitutional Court's third ruling on the constitutionality of this provision. This provision not only fails to establish a maximum duration for the period of detention but also allows for the initiation of detention orders based on the discretion of the executing authority without independent and impartial review. Furthermore, it allows for indefinite extensions as deemed necessary. There has been significant criticism that the treatment of foreigners in such detention facilities resembles that of criminals, leading to the perception that it is akin to imposing punishment on them. Although efforts have been made by the Ministry of Justice and immigration authorities to continuously improve the facilities and treatment provided to foreign nationals, there have been shortcomings. Additionally, as the wording of the aforementioned legal provision remains unchanged, the proposed improvements by the authorities fall short of addressing the fundamental issues. With the recent ruling by the Constitutional Court declaring the aforementioned legal provision as unconstitutional, it is now the responsibility of the National Assembly to enact legislative improvements regarding the detention system for foreign nationals subject to deportation. Above all, the legislature should faithfully reflect the intentions expressed in the Constitutional Court's ruling in the amended legislation. Furthermore, it is essential to establish order in immigration and foreign affairs through the effective execution of forced deportation orders while ensuring the protection of the fundamental rights of foreign nationals subject to forced deportation. These conflicting objectives need to be addressed through comprehensive consideration and solutions regarding the entire detention system for foreign nationals subject to deportation. The discussions on setting a maximum duration for the period of detention and the involvement of independent and impartial institutions in the review process have been extensively debated within the context of international human rights law. The Constitutional Court has also partially incorporated these perspectives in its recent unconstitutional rulings. International human rights law is forming a universal standard for ‘immigration detention’ in particular in the broad framework of discussions on how to treat aliens subject to deportation. Therefore, the National Assembly needs to actively accept these standards and discussions of international human rights law in the process of legislating for improvement.