대한민국 헌법상 외국인의 거주･이전의 자유에 관한 소고

(Research Purpose) This paper aims to examine how the constitutional issues surrounding the freedom of residence and movement, which is based on the concept of natural rights and has a natural rights character, have evolved with the birth of the modern state and the exercise of territorial sovereignty. In particular, it examines how the constitutional meaning and content of foreigners' freedom of residence and movement have changed in the global era of increased inter-state human mobility and the advent of the digital age, as well as the nature and limits of any restrictions on such freedoms. (Research Methods) This study examines the freedom of residence and movement of foreigners through a legal interpretive approach, based on domestic and international laws, constitutional court decisions, and international human rights conventions (such as the International Covenant on Civil and Political Rights). Furthermore, it compares and analyzes the legal status of foreigners residing in the country at each stage of entry, residence, naturalization, and departure, as well as the scope of rights and reasons for restrictions that vary depending on residency status, such as overseas compatriots and permanent residents. (Findings) While some argue that foreigners cannot be subjects of the freedom of residence and movement because they lack the freedom of entry, considering that the freedom of residence and movement is a fundamental right with a libertarian nature, it is deemed unreasonable to deny their subjectivity outright, even though the scope of restrictions on this freedom may be broader for foreigners than for citizens due to factors such as the lack of freedom of entry. Restrictions on the freedom of residence and movement of foreigners are justified by law when they are applied differently to foreigners with different legal statuses, such as overseas compatriots, permanent residents, and marriage immigrants. (Conclusion and Recommendations) The freedom of residence and movement of foreigners can be legally justified based on their different legal status from citizens and the territorial sovereignty of the state. However, the freedom of residence and movement of foreigners in the global and digital age is gradually changing from its traditional form. It is necessary to proactively consider how to apply this change to the interpretation of constitutional fundamental rights based on territorial sovereignty. It is also necessary to consider a differentiated system for guaranteeing fundamental rights, taking into account factors such as foreigners' residency status and their ties to the country.