강제송환금지 원칙을 위반한 강제퇴거명령의 위법성

This article emphasizes the role of non-refoulement, highlighting its significance not only as a limitation on deportation as an executory act (Abschiebung als Realakt) but also as a constraint that prevents the issuance of deportation orders contradicting the principle. If a violation of the non-refoulement principle occurs during the execution of a deportation order — particularly when the individual qualifies as a refugee under the Refugee Convention or falls within the safeguards against forced return established by international human rights treaties — the issuance of that deportation order should be deemed unlawful. Neither administrative law nor international law theory offers compelling reasons to support the perception that non-refoulement exclusively applies to deportation as an executory act. Furthermore, the endeavor to find any rationale within the South Korean Immigration Act or Refugee Act also falls short of providing sufficient justification. Deportation encompasses two fundamental aspects: ‘leaving the deporting country’ and ‘entering a foreign jurisdiction.’ The latter aspect, specifically the designated country of repatriation, carries significant implications, not only in determining the applicability of the non-refoulement principle but also for foreign nationals who might be subject to the deportation process more broadly. Both administrative and judicial processes require a heightened level of substantial assessment regarding the destination country. To align the practical implementation of evaluating the destination country with the assurance of effective deportation procedures, insights from Germany's experience provide pertinent guidance. Building on this perspective, this article proposes mechanisms for judicial review within the administrative litigation framework, particularly when contesting a deportation order revolves around the violation of the non-refoulement principle.