아동의 가족재결합에 대한 연구: 유럽인권재판소 판례를 중심으로

Abstract

Family unity and family reunification (or family reunion) are similar in that they deal with protection of family as one unit. However, since family reunification focuses on the maintenance of families that have already been formed but separated due to migration, these two concepts are not strictly regarded as the same ones. Family reunification is important as it promotes the stability and social integration of the people directly involved. In particular, for children, the necessity of applying the right of family reunification deserves special emphasis as an effective preventive measure against various kinds of risks they face. In Korea, it is difficult as yet to find cases or legislation dealing with family reunification of the child, however, there is a possibility of increasing the future occurrence of the issue due to continuous influx of foreigners.
 Thus, this research attempts to provide a starting point for further discussions through reviewing international legal bases and introducing related case law of the European Court of Human Rights.
 As a result, the research found that there is an international consensus to ensure the family reunification of the child on the basis of the Convention on the Rights of the Child, European Convention of Human Rights and other related documents. The case law of the ECtHR also provides two meaningful implications in this sense. First, it embodied the concept of the family reunification of the child by active consideration of universal and regional standards. The Court confirmed that the family reunification of the child means not only entry into, but also ensuring stable stay. In this regard, the Court recognized a related positive obligation of the authorities. In determining whether there is a violation of the obligations, the Court consistently considered a fair balance between individual and public interests. Second, the Court solidified its position that the best interests of the child should be given priority in all cases concerning children. In the trial processes, the Court comprehensively regarded several factors that may cause significant influence, such as the age of the children concerned, their situation in their country of origin and the extent to which they are dependent on their parents, and so on.
 There may be some differences in family type and culture between Europe and Korea. Nevertheless, the introduction of somewhat advanced judgments from ECtHR is really meaningful in a situation where related discussions are not yet enough. It is expected that this study containing analysis of the European case law on family reunification of the Child would contribute to the improvement of related domestic case law and legislation, considering properly both national interests and human rights.