해양인력법제에 관한 공법적 일고찰 - 외국인선원 관리지침의 법률유보 문제를 중심으로 -

Under the current legal framework, the legal status of seafarers is regulated by the Seafarers Act and related legislation. In particular, the Guidelines for the Management of Foreign Seafarers (hereinafter the “Guidelines”) have been established with respect to foreign seafarers. This study critically examines the Guidelines in light of the principle of statutory reservation. Although the Guidelines contain numerous provisions that restrict fundamental rights, their statutory basis and the scope of legislative delegation remain unclear. To address this issue, it is first necessary to clarify the legal status of foreign seafarers. Foreign seafarers hold the status of seafarers under the Seafarers Act and are also holders of fundamental rights. Under the Act, the legal relationship between seafarers is structured around the relationship between the shipmaster and the crew. The shipmaster is granted certain public powers arising from the special conditions of maritime operations. In this context, crew members are placed in the position of persons subject to the exercise of public authority. However, the Seafarers Act merely entrusts the shipmaster with the performance of public functions and does not define the legal status of crew members as being inferior to that of ordinary holders of fundamental rights. Accordingly, any restriction on the fundamental rights of foreign seafarers must, like restrictions on the rights of ordinary rights holders, comply with the principle of statutory reservation. This study also questions the theoretical justification for applying the principle of statutory reservation to foreigners. Traditionally, the normative justification for this principle has been explained by viewing statutes as expressions of collective decision-making within a national community. However, this explanation is difficult to apply without modification to the protection of foreigners’ fundamental rights. Therefore, in the context of protecting the fundamental rights of foreigners, the justification for the principle of statutory reservation should be found not in the representational character of the legislature, but in respect for diversity within the legislative process.