추방 대상 외국인 구금의 국제법상 한계

Limitations on the Detention of Aliens Subject to Expulsion under International Law - Focusing on Restricting the Detention Period -

This paper explores the limitation of international law on the detention of aliens subject to expulsion. Especially, this research summarizes the discussions of international law regarding the detention period of aliens subject to expulsion, examines the legal practices in the United States, European Union, Republic of Korea, etc., and focuses on emphasizing the necessity of restricting the detention period. In 2014, the International Law Commission (ILC) outlined the「Draft Articles on the Expulsion of Aliens.」 The draft is evaluated as the first attempt to codify and systematize the rules on the international law on the expulsion of aliens. This paper assesses ILC draft as a valuable resource to explore the rules on the international law regarding the detention of aliens subject to expulsion in detail, and regards it as a major topic along with the related articles of major human right treaty including 「International Covenant on Civil and Political Rights (ICCPR).」 To begin the discussion, the study clarifies the definitions of the words such as ‘외국 인’[oegugin], ‘추방’[chubang], and ‘구금’[Gugeum] in Korean. Also, it emphasizes that each country may exercise its own discretion regarding the expulsion of aliens for the purpose of national security based on its sovereignty, but may not be free from the rules of international law. As long as the aliens subject to expulsion is not subject to criminal prosecution, the aliens subject to expulsion should not be treated as same as a person who is sentenced with punishment because the alien is detained only for the purpose of securing the suspect s whereabout following the detention procedure. Also, an alien who is detained for the purpose of expulsion should be confined separately from the person who is sentenced with punishment. The restriction on the freedom of the aliens subject to expulsion is justified only within the boundary of the purpose of detention, and the detention period is restricted based on the necessity, reasonableness, and proportionality. Excessive detention period raises the possibility of ‘arbitrary detention.’ Therefore, the alien cannot be detained permanently. In Korean, ‘보호’[boho] frequently refers to ‘preserve something as it is by protecting it from the danger.’ However, the system ‘보호’[boho] mentioned in the 「Immigration Control Act」, unlike its usual meaning, is used to specify the internment of persons subject to expulsion(deportation) orders in effect. In other words, this system is performed for the purpose of facilitating the expulsion of aliens. Since the article 63 of 「Immigration Control Act」, allows detention to be executed permanently, it requires improvement such as imposing a limit on the detention period and guaranteeing a regular evaluation by unbiased agency.