북한이탈주민의 법적 지위에 관한 헌법합치적 고찰: ｢북한이탈주민의 보호 및 정착지원에 관한 법률｣ 분석을 중심으로

Abstract

Recently, South Korea has continuously encountered with issues derived from legal status of the North Korea refugees. Those North Korea refugees are basically entitled with the legal status under the Constitution and legal status under the ｢North Korean Refugees Protection and Settlement Support Act｣ (hereinafter, the ‘North Korea Refugees Act’), and there are frequent confusions regarding the legal status of the North Korea refugees within the government, legal profession and academic circle in Korea due to the ambiguous legal definition of the North Korea refugee under the ｢North Korea Refugees Act｣, realistic difficulties to apply the same to the international law, and so forth.
 Therefore, under Article 2 of the ｢North Korea Refugees Act｣, a requirement of ‘a person who has applied for protection to the Republic of Korea’ should be added to the requirements of a North Korea refugee for its definition, that a North Korea resident is vested with the fundamental entitlement as a person of the Republic of Korea pursuant to Article 3 of the Constitution, but in case of such a person is in an area (North Korea or foreign country during the process of defecting from North Korea) where the effectiveness of the Constitution of Korea is not extended, the effectiveness of nationality of the Republic of Korea is suspended, and in the case of the North Korea resident clearly indicating its intent to seek for protection to an overseas office of the Republic of Korea or the like, it may render tentative conclusion to restore the legal status as a resident of the Republic of Korea.
 By revising and supplementing the definitions for the North Korea Refugees Act, a reasonable plan may be sought for enthusiastic protection for the North Korea refugees in the Republic of Korea and decrease in diplomatic controversies.