외국인 추방과 외국인 조사 ― 출입국관리법을 중심으로 ―

Deportation is the process of sending foreign nationals, who are considered undesirable, out of the state’s borders against their will. Deportation is understood as one of the most powerful exercises of public power over foreign nationals who do not possess the freedom of residence or movement. The Immigration Act establishes a system of deportation, mandating the repatriation of foreign nationals who meet the grounds for deportation to their state of origin. This is the prototype of a deportation system, fundamentally characterized by its involuntary nature. Foreign nationals without a legal bond are bound to have a weaker legal status compared to citizens, but this does not mean that their human rights are not guaranteed, even though their rights as nationals are not. Considering that due process is a way for the state to respect individuals, the principle of due process, which is based on procedural fairness, can be regarded as a human right that applies to everyone. Therefore, the principle of fair procedure should also be reflected in the deportation process, and we must be careful not to overemphasize the logic of sovereignty in the area of human rights, thereby disregarding legal principles. The issues with the Immigration Act concerning the investigation of foreign nationals can be summarized into three main points: the failure to provide a hearing opportunity, the potential overlap with criminal procedures, and the excessive imbalance of power between the state and individuals. First, the right to request a hearing (the right to state one's opinion) in the realm of administration is classified as a constitutional right based on the principle of due process. In particular, considering that deportation is an extremely disadvantageous outcome for foreign nationals, it is in line with due process that at least one opportunity for a hearing should be provided during the deportation process. Immigration Act does not provide even a single opportunity for a hearing throughout the deportation process. The Immigration Act does not provide even a single opportunity for a hearing throughout the deportation process. While further discussion is needed to determine at which stage a hearing should be introduced, replacing the current interrogation process with a hearing could be a good alternative. Second, most of the reasons for deportation are subject to criminal punishment, and the immigration officials conducting the investigation also hold the status of special judicial police officers. Given that investigations of foreign nationals are likely to function as de facto criminal investigations, it is important to ensure procedural fairness and protect the rights of the individuals involved by guaranteeing their right to defense. In particular, since investigations of foreign nationals involve detention, it is necessary to explicitly state the right to counsel and the right to remain silent. Third, Article 15 of the 「General Act on Public Administration」, which addresses authentication, leads to an imbalance of power between the state and individuals in the administrative domain. Authentication leads to the principle of non-suspension of the 「Administrative Litigation Act」, which grants excessive power to the state. Therefore, it is necessary to find ways to correct this imbalance. Ensuring the right of participation and the right to defense for individuals during administrative investigations, as well as partial adoption of the principle of suspension of execution in revocation suits, are considered important measures to address the issue of power imbalance between the effectiveness of administration and the protection of individual rights. It is particularly significant in areas where an exercise of strong public power, such as deportation, are anticipated.