국문요약 ················································································1 ❘제1장❘ 난민 문제의 현황과 구금의 실태(내용없음) ········3 제1절 연구의 의의 ····················································································5 제2절 난민 심사 및 인정의 절차 개관 ·····················································6 1. 난민신청 절차 ··································································································6 가. 출입국항 난민인정 신청, 처리 절차 ·························································6 나. 체류 중 난민인정신청 절차 ·······································································9 2. 2015년(1월~5월) 난민신청자 현황 ·······························································11 3. 2015년(1월~5월) 사무소별 난민신청 현황 ··················································12 4. 난민 구금 현황 ································································································13 ❘제2장❘ 난민 구금의 법적 근거와 헌법적 한계(내용없음) ··15 제1절 서설 ······························································································17 제2절 절차적 요건상의 문제 - 출입국사무소장 명의 보호명령서 발급 · 18 1. 강제퇴거조치의 의의 ·······················································································18 2. 보호명령서의 효력과 영장주의 ······································································19 3. 출입국관리소장의 지위와 재량권 남용 ··························································20 제3절 보호(구금)기간의 문제- ‘송환할 수 있을 때까지’ 라는 기재로 인한 종기의 예측 불가 ··········································································21 1. 조문상의 종기의 불명확성 ··············································································21 2. 보호기간의 실태: 보호인가, 구금인가 ···························································21 3. 국내 외국인의 신체의 자유의 권리 ·······························································24 4. 종기의 불명확성의 위법성 ··············································································25 제4절 장기구금의 법적 구제 수단의 문제 ··············································26 1. 보호의 일시해제 ······························································································26 가. 의의 ···········································································································26 나. 목적 ···········································································································26 다. 관련 법령과 쟁점 ·····················································································27 라. 심사기준과 요건이 지나친 임의규정인가 ···············································28 마. 비례의 원칙에 부합하는가 ·······································································29 2. 3개월마다 마련된 법무부 장관의 승인절차 ··················································29 가. ‘3개월’ 이라는 기간과 종기예측불가능성 ··············································30 나. ‘법무부 장관의 승인절차’ ········································································31 3. 보호에 대한 이의신청 ·····················································································31 가. 이의신청의 절차 ·······················································································31 나. 헌법재판소 결정 요약 및 분석 ·······························································31 다. 쟁점 ···········································································································32 라. 2년이 걸린 이의신청 기각 결정에 관하여 ············································32 4. 강제퇴거명령 및 보호명령 취소의 소 ···························································34 가. 처분사유의 제시 ·······················································································34 나. 재량권 남용의 문제 ·················································································36 제5절 난민위원회의 지위 문제 ·······························································38 1. 난민위원회의 비상설화 ···················································································39 2. 난민위원회의 비독립화 ···················································································39 3. 출입국관리법 제63조 제1항과의 관계 ··························································40 제6절 소결 ······························································································40 ❘제3장❘ 난민 구금과 형사절차상 구속제도와의 비교 분석(내용없음) ····················45 제1절 서설 ······························································································47 제2절 난민처우에 있어서 인신보호법 제2조 제1항의 위헌성 검토 ·······47 1. 난민신청자의 헌법적 지위 및 권리 개관 ······················································47 2. 헌법 제12조 제1항 및 제6항 신체의 자유 침해 여부 ································50 3. 출입국 관리법 상의 보호와 행정상 인신구속의 차이 ··································52 4. 소결 ··················································································································54 제3절 형사절차상 구속 제도와의 비교 ···················································55 1. 서설 ··················································································································55 2. 구금의 개시 ···································································································55 가. 법적근거 ····································································································55 나. 구금의 개시 요건 ·····················································································56 다. 구금의 개시 절차 ·····················································································57 3. 구금의 연장절차 ······························································································57 가. 법적근거 ····································································································57 나. 구금의 연장을 위한 요건 ········································································58 다. 연장 절차의 문제점 ·················································································59 4. 구금여부 연장주체 ···························································································60 가. 법적근거 ····································································································60 나. 구금의 연장주체 ·······················································································60 다. 문제점 ·······································································································61 5. 구금기간의 상한 ····························································································62 가. 법적근거 ····································································································62 나. 강제퇴거명령을 위한 보호의 문제점 ······················································63 6. 불복방법 ·········································································································65 가. 법적근거 ····································································································65 나. 보호에 대한 이의신청과 구속적부심의 비교 ·········································66 다. 보호에 대한 이의의 문제점에 대한 개선방향 제시 ······························69 제4절 소결 ······························································································70 ❘제4장❘ 국제조약 및 외국의 난민 구금 관련 법적절차 검토(내용없음) ····································73 제1절 난민 구금 관련 국내법과 국제조약 개관 ·····································75 1. 출입국관리법 ····································································································75 2. 난민법 ···············································································································76 3. 인신보호법 ·······································································································77 4. 1951년 난민 협약 및 1967년 난민 의정서 ·················································77 5. 유럽연합지침 2005/85/EG ··········································································78 제2절 미국 ····························································································78 제3절 독일 ······························································································80 제4절 캐나다 ·························································································82 ❘제5장❘ 난민의 인권보장을 위한 구금 규정의 정비(내용없음) ···················································85 제1절 난민 구금의 문제점 ······································································87 1. 출입국관리법상 ‘보호’와 인권침해 문제 ·······················································87 2. 보호명령서 발급 주체의 문제 ········································································88 3. 보호(구금)기간의 문제 ···················································································88 4. 인신보호법 제2조 제1항의 위헌성 문제 ·······················································89 가. 인신보호법 제2조 제1항에 대한 헌법재판소 결정 ·······························89 나. 난민신청자의 헌법적 지위 ·····································································90 5. 보호의 보증금 문제 ·······················································································91 6. 구금기간의 불확정성 ·······················································································92 7. 난민심사절차의 지연 ·······················································································92 제2절 난민의 인권보장을 위한 구금 규정 정비 방안 ·····························93 1. 법해석학적 정책 ······························································································93 2. 영장주의의 전면적인 도입(전면적 개선) ·······················································93 3. 외국인 보호에 대한 구제제도 마련 (출입국관리법 제55조2 신설) ············94 4. 구금기간 상한의 명시 (출입국관리법 제63조 제1항) ··································95 5. 보호명령서 발부시 실체요건 추가(심사없는 구금 해결) ······························96 6. 일시해제보증금 변경 (출입국관리법 제65조) ···············································97 7. 법관의 보호명령서 발급 (출입국관리법 제51조) ··········································98 8. 인신보호법 개정(인신보호법 제2조 관련) ·····················································99 제3절 결론 ······························································································99 참고문헌 ································································································114

2014년 7월 난민법의 제정과 국외 여건의 변화등으로 인해 최근 국내에 많은 난민신청이 들어오고 있다. 난민신청자 대부분은 독재정권, 종족간의 갈등, 내전, 폭력사태 등으로 그 인권상황의 심각성이 국제사회에 널리 알려져 있는 국가의 출신이다.2015년 현재 난민의 문제는 이른바 ‘시리아 난민’1)문제를 통해 본격적으로 조명을박기 시작하였고 이로 인해 많이 외면 받던 난민의 문제가 수면 위로 떠올랐다고볼 수 있다. 난민 문제는 자국에게도 난민을 수용하고자 하는 수용국에도 매우 예민한문제가 될 수 있어 여러 선진국에서도 한 가지의 이상적인 입장을 취한다기 보다는다양한 입장을 견지하고 있어 이 문제에 대해 어떤 식으로 입장을 취해야 하는 지도뚜렷하지 않다. 인도주의적인 입장과 국가 간의 문제, 국가 내의 문제를 잘 고려하여야한다는 것은 분명한데 이에 대해서 우리나라에서도 2014년 난민법을 제정한 바가있으며 개선시켜 나고 있다.그러나 통계 상 우리나라의 난민 수용률은 최하위권이며 이에 대해 전 유엔 직원카트린 박은 지난 9월 미국 일간 유에스에이투데이에 실은 기고문에서 “한국과 일본은 모두 1951년 유엔난민협약 서명국으로, 난민을 보호하고 기본권과 최소한의 복지를 제공할 의무가 있지만 받아들이는 난민 수는 매우 적다”고 지적했으며 인구고령화와 저출산에 시달리는 한국과 일본은 이민과 난민에 문호를 개방하지 않으면 “생산가 자부심과 외부세계에 대한 경계 때문에 난민이나 이민에 대한 저항이 크다”고설명했다. 이처럼 단일 민족이라는 자부심과 폐쇄성이 우리의 문을 여는 데에 큰걸림돌이 되고 있다.이러한 환경의 변화에도 불구하고 우리 출입국관리법과 난민법을 비롯한 관련 법률이 이러한 문제를 감당하는데 일정한 한계가 있는 것 또한 사실이다. 특히 난민의지위를 인정 받기 전의 이른바 ‘보호’조치를 통한 구금은 난민 인권과 관련하여 많은문제점을 논출하고 잇고, 이에 대한 비판도 상당히 제기되고 있다. 이하에서는 난민의인권보호를 구금 규정을 정비하기 위한 목적으로 한다. 이에 먼저 난민 심사 및 인정의절차를 개관하고 난민 문제의 현황과 구금의 실태를 파악한다(제1장 제2절 및 제3절).이어 현행 우리나라의 난민 구금에 대한 법적 근거와 헌법적 한계를 출입국관리법제63조 제1항의 위헌성 검토를 통해 분석하고자 한다.(제2장) 난민 구금에 있어서‘보호’제도와 형사절차상의 ‘구속’제도와의 비교를 통해 난민 구금의 문제점을 조명하되 그 전 단계에서 인신보호법 제2조의 문제점을 다루면서 심층적인 비교를 시도하였다(제3장). 한편 난민의 문제는 우리 헌법과 관련 국내법을 통해 접근하면서 동시에국제조약과 외국의 관련 정책을 검토해야 하기 때문에 비교법적 접근을 통해 난민구금의 특성과 현황을 검토하였다(제4장).마지막으로 결론에 갈음하여 난민 인권보장을 위한 구금 규정의 정비 방안을 제시하고자 하였다. 먼저 국내 문헌들과 관계자들에 의해 지적되는 난민 구금상의 문제점을 개관하고(제5장 제1절), 이를 통해 난민의 인권이 향상될 수 있는 구금 관련 법정책과 제도를 대안으로 제시하고자 하였다(제5장 제2절).