재외국민 보호에 관한 헌법적 고찰 - 특히, 헌법상 재외국민보호의무와 외교적ᆞ영사적 기본권보호의무를 중심으로

Abstract

The constitutional obligations of Korea as a state in relation to the protection of and support for Korean people outside of the territory of the country (overseas residents in a broad sense) can be discussed based on two important pillars. The first is the obligation to protect Korean nationals overseas based on Article 2 (2) of the Constitution, and the second is the diplomatic and consular state obligation to protect the basic rights. First, according to the historical interpretation of this Article, the overseas Koreans who must be protected under Article 2 (2) of the Constitution are those Korean nationals (overseas Korean nationals in a narrow sense) who have resided in a foreign country for a long time. In addition, the details of protection include: ① the diplomatic and consular protection to ensure that Koreans overseas are treated properly in accordance with international laws and the laws of the country of their residence while they have resided in that foreign country; and ② the provision of beneficial support for those Koreans, considering their residence overseas, so that they can realize their social integration as Korean nationals to improve the convenience of their domestic and foreign activities. Second, since the diplomatic and consular state obligation to protect the basic rights of overseas Koreans is based on the fact that the state power must be bound to the basic rights of the nationality (even if the nationality stays outside of Korea's sovereignty over territory), those who must be protected include all Korean nationals overseas (overseas Koreans in a broad sense) (regardless of the causes or purposes of their residence in foreign countries). In addition, the protection is that the state should protect the basic rights of Korean nationals through the diplomatic and consular means in the event of infringement on their basic rights outside the country's sovereignty over the territory. On the other hand, the details of diplomatic and consular protection among the contents of the state's constitutional protection obligation for overseas nationals are overlapped with the contents of the diplomatic and consular obligations of the state to protect basic rights. However, the latter, unlike the former which focuses on the protection of and support of overseas Koreans in a narrow sense, directly targets overseas Koreans in a broad sense, and the violation of the obligation causes the infringement of their basic rights. Theoretically, the latter is distinguished from the former in that a subjective civil rights corresponding to the protection obligation can be derived.