脫北者의 法的地位와 處理方案에 관한 연구 = (The) research against the legal position and a control plan of the defecter from North Korea

다국어 초록 (Multilingual Abstract)

1. INTRODUCTION
From end of 1980's defecter from North Korea evil it increased rapidly with deterioration of change and North Korea food situation of international situation. This dissertation examines closely the legal position of the defecter from North Korea who increases rapidly and the human rights of the defecter from North Korea and in the objective the protection plan against them with the evening twilight box it protects in unity time it prepares it does. The contents of the dissertation which it sees examines closely the escape cause of the defecter from North Korea and is undergoing from their several sizes and foreign countries the human rights situation back which with the domestic law position of the defecter from North Korea and as the citizen of the Republic of Korea and it investigates it relates it regards, to investigate the thing authorization proper to assert diplomatic protection volume, and, the yes or no where the defecter from North Korea should have corresponded to the sufferer at international law and sufferer position human nature the method which is the possibility of receiving the case protection which it will receive there probably is what kind of thing, the nations which relate with the report defecter from North Korea problem to investigate and the relation international bodies examine against a defecter from North Korea problem how control actuality. It became accomplished with the fact that it tries to analyze the legal plan which is the possibility we helping the defecters from North Korea.
2. MAIN SUBJECT
With the north cause which the North Korea resident will burn it is a cause where the deterioration of food difficulty is big most against the size economic growth of dissolution and China of nine Soviet Union and change of the relationship developmental back international community of Korea and China, Korea and Russia to become that cause the relation husband and wife and the various defecter from North Korea support group inside the government and the north sufferer U.N. petition motion headquarters which will burn or there is a difference whose presumed from the U.N. sufferer high commissioner backs is considerable.
The defecters from North Korea human body selling and buying or work exploitation and the healthy destruction back are undergoing the human rights infringement which is various from China or Russia.
Diplomatic protection volume against the overseas citizen of the nation existence of nationality at prerequisite to relate with the domestic law position of the defecters from North Korea because of description below, their nationality problem is important. The Republic of Korea and North Korea are adopting the beriberi specific nationality law and regarding the acquisition of nationality tube attention and birth attention and negotiation attention hyel there is, our country nationality law hyel is taking a tube attention. Also North Korea hyel is adopting a tube attention from the nationality law of oneself and regarding a nationality each nation in freedom and from inside international law principle this it will be able to decide the nationality law of North Korea from relationship with the 3rd country it will not be able to recognize an effect.
Diplomatic protection volume against the defecter from North Korea that it is in North Korea, must see from diplomatic official total situation of China and South Korea against Russia and North Korea.
Our country constitution 3rd as the territory provision which dozes at interpreting this provision the resident which is living in the North Korea area it regarded as the Korean citizen and it came. It judges the legal position of the defecter from North Korea to be, to the Korean Peninsula two nations which are South Korea and North Korea which are an international law subject which differs exist is a possibility of knowing. From relationship with South Korea and North Korea will say that it forms the relationship of the uniqueness where only the international law which is simple is not applied. It follows hereupon and the North Korea resident "is the South Korean citizen at domestic law and it is thought that it is proper to see with the fact that it has the position which special has an actual North Korea nationality from international law point of view is".
Considers the actuality of relationship the north and south to relate with the international problem of the North Korea resident and are not also the method and the foreigner who provide the legal position problem of the North Korea resident in international law it will be able to investigate the special Buddhist priest's robe establishment by law which recognizes the legal position which the North Korea resident where is not also the Korean citizen is special.
t relates with the international law position of the defecter from North Korea and does the fact that it is most important to the sufferer at this international law of them correspond is yes or no. Regarding the concept of the sufferer currently the justice from sufferer agreement and sufferer protocol is applied in standard. The defecter from North Korea is recognized once to the case which human nature receives the position of the sufferer exile volume at international law and regarding the protection of the sufferer it takes charge of the role where the UNHCR is important.
The defecter from North Korea it sees the UNHCR back international body and the attitude of the sufferer receipt country of most and proof of agreement regulation coat concept and oppression it magnifies a protection of human rights extension in objective and is oppressed only evidence is and the qualification is recognized the elasticity where is the fact that it operates is actuality application method of agreement from India point of view. Also, UNHCR office regulation at 'interpreting the economic reason which' is pure 'it is pure and 'this meaning which is included, 'it tries to avoid an economic destitution simply the life which recovers business, flows to the hazard other country which it does 'must interpret escaping North Korea when 'it does not escape, oneself of course family starves with meaning which is and the life and a body threat of oneself and to the sufferer at international law justly not to be a route which will escape, mortgage it does that it escapes 'the person it admits it corresponds, must see.
The defecter from North Korea escaped from an economic motive but dividing the political motive and the economic motive only it will be difficult the bay it knows border escape form it corresponds to a political crime from North Korea. Consequently the escape from of poverty escape from the political system and to overlook the point it will not be able to separate is not to become. The North Korea elder brother law goes over the border and the fact that it goes out with an outside in middle crime and rules over escape act as one escape is a possibility of seeing with the reason which a political opinion to be a challenge act the form against a North Korea setup, differs.
When it tries to observe the policy of the circumference country against the defecter from North Korea China by the actuality necessity which is a traditional amicable relationship and a social maintenance of public peace of North Korea and does not recognize the defecters from North Korea in the sufferer not to be, it regards as the illegal alien and forced repatriation it is doing, Russia does not intervene to a defecter from North Korea problem if possible to be being, South Korea side will request around in the instance which will cry to follow, it cooperated informally and it came. The UNHCR to stare and against the situation of the defecters from North Korea the position of the Chinese government and, to consider very to take the attitude which is prudent and also the defecter from North Korea come the interest object one which it wins positively does not approach is the actual condition.
The South Korea government the overseas defecter from North Korea and inside South Korea against the defecter from North Korea who enters enforces a various support policy and Iss u difficulty some it is the actual condition which is insufficient and the defecter from North Korea sends exile request and as the control plan against case him which will come the UNHCR intervention hour height well! the difficulty or minimum stay country and the UNHCR it is in parallel from mid-long term viewpoint and it is thought. also, that it is desirable to attempt a problem solving, with the international law plan which is the possibility of helping the defecter from North Korea must do a human rights intervention from India interference dimension.
3. CONCLUSIONT
Against the nationality problem of the defecter from North Korea them it establishes the exception law which it recognizes with the fact that it has a North Korea nationality with this provisional enemy and it selves legislation with to remove the confusion which relates with the nationality and a diplomatic protection of the defecter from North Korea, hya it does.
It relates with the sufferer position human nature of the defecter from North Korea and against the limit of legal approach must grope China or Russia and a political and diplomatic solution plan, regarding the legal position of the defecter from North Korea previously that thorough study in necessity.
There is a possibility the north situation which will burn geometrical progression distant in future will be able to increase always to have an interest and the effort for a solution must race.

목차 (Table of Contents)

• 목차
• 제1장 서론 = 1
• 제1절 연구의 목적과 범위 = 1
• 1. 연구의 목적 = 1
• 2. 연구의 범위 = 4
• 제2장 탈북자의 국내법적 지위(地位) = 5
• 제1절 외교적 보호권(保頀權)과 탈북자의 국적(國籍) = 5
• 1. 외교적 보호권과 국적 = 5
• 가. 외교적 보호권(外交的 保護權) = 6
• 나. 국적의 의의와 기능 = 6
• 2. 대한민국의 국적법(國籍法) = 7
• 가. 혈통주의(血統主義) = 7
• 나. 경과규정(經過規定)의 문제 = 8
• 3. 북한의 국적법 = 10
• 가. 북한국적법의 효력 = 10
• 나. 북한주민에 대한 외교적 보호권 행사의 경합 = 11
• 제2절 남북한 특수관계(特殊關係)와 탈북자의 국적 = 12
• 1. 남북한 특수관계의 법적 의미 = 12
• 2. 영토조항(領土條項)과 탈북자의 법적지위(法的地位) = 15
• 가. 영토조항(領土條項) 문제 = 15
• 나. 영토조항과 탈북자의 국적 = 15
• 3. 탈북자의 국적문제(國籍問題)에 관한 접근방법(接近方案) = 17
• 가. 해석론적(解釋論的) 접근(接近) = 17
• 나. 입법론적 접근(立法論的 接近) = 19
• 4. 국적문제(國籍問題) 해결방안(解決方案) = 21
• 5. 영토조항(領土條項)과 평화통일조항(平和統一條項)의 충돌문제 = 22
• 제3장 탈북자의 국제법적(國際法的) 지위(地位) = 24
• 제1절 난민(難民)의 보호(保護)에 관한 일반이론(一般理論) = 24
• 1. 난민의 개념(槪念) / 자격요건(資格要件) = 24
• 가. 난민의 개념 = 24
• 나. 난민의 자격요건(資格要件) = 25
• 2. 난민자격(難民資格)의 결정(決定) = 28
• 가. 체약국(遞約國)에 의한 난민지위의 결정 = 28
• 나. UNHCR에 의한 난민지위의 결정 = 28
• 제2절 난민의 국제적 보호(保護) = 30
• 1. 난민의 망명권(亡命權) = 30
• 가. 망명권(亡命權)의 의의 = 30
• 나. 망명권의 내용 = 31
• 2. 강제송환금지(强制送還禁止)의 원칙(原則) = 32
• 가. 강제송판금지원칙의 의의 = 32
• 나. 강제송환금지원칙의 법적 성질 = 33
• 3. 난민보호에 관한 UNHCR의 역할 = 34
• 가. 난민에 대한 국제적 보호의 역할 = 36
• 나. 난민문제의 항구적(恒久的) 해결을 모색(模索)하는 역할 = 36
• 제3절 탈북자의 난민자격(難民資格) 인정여부(認定與否) = 39
• 1. 난민개념의 확대 = 39
• 가. 난민의 유형(類型) = 39
• 나. 난민 개념의 확대(擴大) = 41
• (1) 난민 개념의 변화(變化) = 41
• (2) 난민개념확대에 관한 지역적(地域的) 국제원칙(國際原則) = 42
• (3) 난민개념 확대의 새로운 경향 = 43
• 2. 탈북자의 난민자격 여부 = 44
• 3. 동독 탈출자 문제해결을 위한 독일의 사례 = 47
• 4. 베트남 난민 처리의 사례 = 48
• 제4장 관계국의 탈북자 처리현실 및 그 효율적(效率的) 처리방안에 대한 법적 분석 = 49
• 제1절 관계국의 탈북자 처리현실 = 49
• 1. 중국 및 러시아의 탈북자 처리현실 = 49
• 2. 남ㆍ북한의 탈북자 처리현실 = 53
• 가. 북한의 처리현실 = 53
• 나. 남한정부의 처리현실 = 54
• (1) 재외 탈북자에 대한 처리현실 = 55
• (2) 남한내 입국 탈북자에 대한 처리현실 = 57
• 3. 난민관련 국제기구의 입장 = 60
• 가. UNHCR의 입장 = 60
• 나. 기타 국제기구의 입장 = 61
• 제2절 탈북자의 망명 요청시 처리방안 = 62
• 1. 체류국 당국에 망명을 요청하는 경우 = 62
• 가. 체류국의 직접처리(直接處理) = 62
• 나. 체류국의 동의에 따른 UNHCR의 개입 = 64
• 2. 한국공관에 망명을 요청하는 경우 = 65
• 가. 한국의 직접처리 = 65
• 나. 체류국에 대한 협조요청 또는 UNHCR의 개입 = 67
• 3. UNHCR의 현지 사무소에 망명을 요청하는 경우 = 68
• 제3절 탈북자 지원방안의 국제법적 분석 = 69
• 1. 인도적(人道的) 간섭(干涉) 차원의 인권개입(人權介入) = 69
• 2. 탈북자에 대한 강제송환(强制送還)의 위법성(違法性) 문제 = 70
• 3. 탈북자 관련조약과 난민의정서의 우선원칙(優先順位) = 72
• 4. 국제연합헌장(國際聯合憲章) 및 세계인권선언의 최우선원칙 주장 = 73
• 제5장 결론 = 75
• 參考文獻 및 資料 = 81
• ABSTRACT = 87