외국인 추방 제도에 대한 비판적 고찰 - 출입국관리법을 중심으로 -

Deportation refers to sending out of the border aliens who are deemed undesirable to the country. The purpose of deportation lies in the pursuit of the national or public interest related to the existence of the state. Therefore, powerful public authorities of the state is expected to be used in deportation than in any other area. Deportation has been recognized as an area of sovereignty, and legal issues such as securing the due process and limits of discretion have been treated as less important. However, considering that state action towards aliens should also be based on the rule of law, administrative action related to deportation need to be more closely regulated than now. The law regulating deportation is the Immigration Act. According to the Immigration Act, deportation is divided into deportation, departure order, and recommendation for departure. Deportation is the most powerful form involved in involuntary departure. In contrast, departure order and recommendation for departure represent milder forms of deportation based on voluntary departure. Deportation is classified as direct execution, which should be used as exceptional measure. Current system using deportation as the rule, departure orders and recommendation for departure exceptions is not appropriate. Under the Immigration Act, alien investigations are categorized as administrative investigations. Article 48 of the Immigration Act adopts interrogation as a investigation method. Considering that interrogation is an evidence investigation method used in lawsuits or criminal investigation procedures, it is necessary to review whether it is appropriate to conduct interrogation in administrative investigations. The absence of control by a neutral institution over the detention that restricts liberty of person and the oversight of the distinctiveness of filing objections, which is practically utilized as the final relief procedure, are also serious problems. The current Immigration Act is regulated more from a criminal aspect than an administrative aspect. It is necessary to recognize that deportation is in the realm of administration, not criminal, and to amend the law so that the deportation procedure can function as an efficient system to achieve administrative purposes.