우리나라의 ‘인도적 특별체류 조치’에 관한 시론적 고찰

The Republic of Korea has provided “humanitarian special stay measures” for foreign residents from Myanmar and Afghanistan since 2021, later expanding these measures in 2022 to include foreign residents from Ukraine. This initiative constitutes a significant collective response to humanitarian crises, marking an unprecedented effort within Korea. However, the implementation of these measures appears to lack a solid legal foundation, rendering them a discretionary form of relief. Additionally, there exists considerable ambiguity surrounding the various frameworks employed by the government. To address this concern, the present article proposes essential legal and institutional improvements to ensure that these measures create a flexible and supplementary framework that effectively responds to humanitarian emergencies and addresses existing protection gaps. In support of this argument, this article examines the European Union’s Temporary Protection Directive and the Temporary Protected Status under the U.S. Immigration and Nationality Act. It specifically highlights challenges that require focused attention, as outlined below. First and foremost, it is essential, at a normative level, to clearly define and articulate the connections with the existing international protection frameworks utilized by the government, along with the procedures for accessing the corresponding protections. This holds particular importance, given that certain foreign residents seeking humanitarian special stay measures may qualify for refugee status or humanitarian status under the Refugee Act of Korea. Second, it is imperative to provide clear guidance on procedural safeguards as well as the available administrative and judicial remedies. This is due to the fact that decisions made by the Ministry of Justice concerning humanitarian special stay measures have a significant impact on the legal status of the foreign resident concerned, thereby directly influencing their fundamental right to physical integrity and life. Consequently, it is vital to establish proactive and well-defined implementation strategies. This guarantees that various types of protections and remedies are actively put into practice, rather than serving as mere formal declarations. Last but not least, it is vital to enhance and safeguard the living conditions of individuals who have been granted humanitarian special stay measures, as they often find themselves in circumstances requiring extended residency due to ongoing humanitarian crises. This tackles the underlying factors that drive individuals to seek illegal employment for their survival and basic needs. By establishing a more robust legal and institutional framework and refining operational procedures, the humanitarian special stay measures greatly enhance its capacity to bolster the existing international protection framework under the Refugee Act. The proposed legal and institutional reforms aim to improve Korea’s international protection system, allowing for multi-faceted support that addresses urgent needs and diverse situations. This article aspires to lay a basis for further research and discussion, ultimately contributing to the advancement of humanitarian special stay measures.