난민인정 제한사유를 확대하는 난민법 개정안의 비판적 검토

In September 2024, South Korean Ministry of Justice(“MOJ”) submitted the Refugee Act amendment bill(“Amendment Bill”) to the National Assembly, proposing to enable Korean government to refrain from granting refugee status in cases where “national security or public order” has been harmed or is at risk of being harmed. The Amendment Bill is alleged to supplement the existing Refugee Act: while the Refugee Convention(“Convention”) provides grounds to exclude certain asylum seekers from protection when they are deemed to pose a threat to national security or public order and major states have implemented such provisions in their domestic laws, Korea lacks comparable clauses. However, as the Convention already takes into account the security of the receiving country or the safety of the community within its system, domestic legislation measures should be made within the obligations that the Convention imposes on contracting states. In this article, we have analyzed whether the Amendment Bill complies with the Convention, through reviewing the Convention and foreign legislation the MOJ presents as examples for standard practice. The result of the analysis is that the Amendment Bill does not comply with the limitations stipulated in the Convention. The details are as follows. First, Art. 32 of the Convention, which the MOJ draws its claims from, is a provision to guarantee the stable residence of legally residing refugees. Even when a refugee falls under the exception, refugee status is not revoked, nor is unlimited removal guaranteed. Since the principle of non-refoulement in Art. 33 should be observed unless Art. 33(2) exceptions apply, removal to a country of nationality or other places where there is a risk of persecution is still prohibited. Denying or depriving refugee status on the grounds of Art. 33(2) exceptions goes beyond the limits of Article 32. Foreign legislation presented by the MOJ is also about deprivation of residence permits, not deprivation of refugee status itself. Second, it is important to note that the Art. 33(2) exceptions to non-refoulement are not only stricter in its requirements compared to the Amendment Bill, but also does not exclude the application of the Convention, as Art. 33(2) exceptions only serve to prevent refugees from demanding the benefits of non-refoulement. The European Union Qualifications Directive turn Art. 33(2) exceptions into grounds for refusal or withdrawal of refugee status under the Directive, but those excluded from the Directive’s refugee status are still refugees in the sense of Art. 1A(2) and entitled to rights set out in the Convention. On the other hand, the United States cites Art. 33(2) exceptions as grounds for denying asylum, though this is highly likely to be regarded as breaching the Convention. Considering that the grounds for exclusion in the current Amendment Bill are even broader than those in the U.S. law, the Amendment Bill warrants serious reconsideration.