글로벌시대 재외동포정책 선진화 방안으로써 재외국민 참정권부여

김태운 동의대학교 지방자치연구소 2011 공공정책연구 Vol.28 No.1

영토와 인민, 주권의 국가적 계기와 인민적 계기가 끊임없이 대립하고 통일하는 과정에서 국민국가가 취급하는 인간은 국민과 외국인이라는 두 범주로 명확히 구분되지 않는다. 외국인이지만 국민이 향유하는 권리의 일정 부분을 누리는 데니즌(denizen)과 외국국적동포(혈연외국인)가 있는가 하면, 국적은 있으나 국민의 권리를 모두 누리지 못하는 사람도 생겨난다. 반면 여러 국가에서 국민의 권리를 누리는 사람들도 있다. 이러한 지위 분화가 국민국가의 정상적인 인적 조직화 형태에서 벗어난다고 생각하여 이를 탈국가적 시민권의 징후로 보는 것은 잘못이다. 그것은 국민국가가 늘 지녀온 모순의 표출일 뿐이다. 그러한 모순이 국경을 가로지르는 네트워크와 실천, 즉 초국가성의 증대에 의해 새로운 균형을 찾는 것에 불과하다. 재외국민을 주권의 정치에 편입시키는 ‘정치적 초국가성’과 재외시민권(external citizenship)의 발전이 “네이션과 국가의 탈구,” “네이션, 영토, 시민권의 분리” 또는 시민권의 재구성인 것처럼 말하기도 하는데, 그것은 국민국가체제에 대한 도전이 아니며 국민국가가 시민권의 가장 주된 소재지임을 부정하는 것이 아니다. 재외국민참정권의 확대는 주권인민의 범위를 대인주권의 형식적 경계에 일치시켜 인민주권에 기초한 국민국가의 이상을 보다 완전히 실현하려는 동력이 작용한 결과이나, 그렇다고 인민주권의 원리로부터 규범적으로 의무화되는 것은 아니다. 반면 국민국가의 자기구성원리를 부정하거나 초극하는 것 또한 아니다. 그것은 초국가적 삶이 증대되는 상황에서 국민국가의 모순이 재조정된 것을 뜻한다. 그렇기 때문에 그것은 네이션과 국가, 영토와 인민의 괴리에 수반된 다른 집단의 지위 변화와의 연관성 속에 고찰되어야 한다. 특히 영토 내에 거주하여 국가의 주권 및 거번먼탈리티의 목표물이 되어 있으나 주권자로서의 선거권을 가지지 않은 외국인의 참여를 보장하는 문제와 분리될 수 없다. 재외국민은 국민이라는 이유만으로 완전한 참여의 권리를 갖거나 해외에 거주한다는 이유만으로 배제되는 것이 아니다. 참여는 경계가 확정된 자율적 정치공동체의 성원으로서의 지위를 전제로 하면서 그 정치공동체의 진로에 이해관계를 가진 사람들에게 열려 있다. 영토 밖에 살고 있지만 국가에 소속되어 있고 그 성쇠와 일체감을 느끼는 사람들과 영토 내에 살면서 생활상의 이해관계를 갖는 사람들의 참여를 권리화 한다. 후자는 전자와 달리 국정선거에의 참여를 보장받지는 못하는데, 이는 국정선거의 결과로부터 영향을 덜 받기 때문이 아니라 국민이 되는 길을 선택하지 않았기 때문이다. 이러한 논리는 국적취득의 길이 열려있음을 전제로 한다. 이해관계자 시민권 개념은 영토와 인민을 본질적 요소로 하면서도 양자의 대립이라는 내재적 모순에서 시달려온 국민국가의 딜레마를 해결하기 위한 노력의 일환이다. 그것은 국민국가로의 분절화를 전제로 하는 글로벌체계의 기본질서에서 벗어나는 것은 아니다. Unity and Opposition between Territoriality and Peopleness: The Dialectic of the Political Participation of External Citizens. The study begins by questioning whether the principle of popular sovereignty encompasses the political participation of external citizens, a question which should have been taken more seriously in the 2007 Constitutional Court decisions on the constitutionality of disenfranchising overseas citizens in national and local elections and referenda. It canvasses worldwide national practices of external voting and the treatment of the issue by international law, and concludes that states are not obliged to guarantee the participation of external voters. The stud examines the rationales for and against external voting, which are believed to reveal the motivations of, and the structural forces governing, nation-states in determining their boundaries of sovereign people and allocating political rights. In the concluding section, the essay discusses the politico-sociological implications of the political participation of external citizens, interpreting that the issue reveals a fundamental contradiction in the concept of the nation-state and the practices demonstrate the unity and opposition between territoriality and peopleness in the existence of the nation-state.

외국인 노동자의 법적보호

李光澤 國民大學校 法學硏究所 2004 법학논총 Vol.16 No.-

In August 2003 the Act Concerning Employment of Foreign Workers which induced the "employment permit system"(EPS) was promulgated. The EPS was designed in order to reduce the abuses of the "Industrial Trainee System"(ITS) as well as lighten legal employment of alien workers by medium and small industries which have difficulties in recruiting Korean workers. In the process of preparing for the new EPS, which is to be affective in August 2004, the Government of Korea took a measure between September and November 2003 to legalize 184,000 aliens, or 81% of the 227,000 illegal residents, who were staying in Korea for less than 4 years. The others were to be expelled out of Korean territory. The selective legalization process for undocumented migrants who have been in Korea (as of March 31, 2003) was as follows: 1) less than 3 years are eligible for sojourn status; 2) between 3 years and less than 4 years: eligible for visa issuance certificate then leave the country by November 15. Afterwards within 3 months return to Korea for legal employment; 3) more than 4 years: there is no way to legalize (the Korean government has warned that they must leave the country by November 15, otherwise arrest and forcible deportation would be implemented). Expulsion, heavy fines, and ban on reentry were to be the consequences of all undocumented migrant workers who did not leave voluntarily. A joint rally of the joint Committee for Migrant Workers in Korea (JCMK)/the Common Committee for Opposing Crackdown on Migrant Workers, Abolition of Trainee System and Securing Migrants' Rights, Korea (COCATS) and the Special Committee on Amending the Overseas Korean Act was held in downtown Seoul on November 2. On November 11 a Sri Lankan migrant, who came to Korea as a trainee 7 years ago to support 7 family members in home, threw himself at a subway train with the fear of forced deportation. On the next day a Bangladesh migrant, who had been staying in Korea for 7 years, hung himself because there was no way to pay back the loan raised in order to come to work in Korea. These deaths triggered a series of sit-in protests which was started in Ansan of Gyeonggi province. On 14 migrant workers in Changwon of Gyeongnam province staged a sit-in protest after a memorial service for the dead alien workers. A large group of Chinese workers of Korean origin joined the sit-in protest, as well. Between November 17 and 28 the Ministry of Justice, National Intelligence Service, and Police Agency jointly operated forcible deportation of undocumented migrants who were not eligible for legalization. During the period 1,233 migrant workers and 250 employers were taken into custody. On 20 a Russian migrant, who came to Korea in January 2003 with tourist visa, jumped overboard in trying to escape from the ship taking him back home. On 25 an Uzbek out of despair hung himself in Incheon. On December 3 a policy coordinating meeting under the Office of the Prime Minister released new measures to solve undocumented migrants' problem. According to the new measures, if the undocumented migrants voluntarily leave the country by the end of 2003, the period of ban on reentry would be shortened as less than 6 month. During the period of December 8 and 17 when the government operated the 2nd round of joint control measures, a Korean Chinese died on the street due to the cold weather and a Bangladeshi worker found dead in a container where he hid himself during the control and was unable to be properly treated for heart ailment. On 13 a group of Indonesian migrant workers from Changwon who were holding silent demonstration in front of the Korea Methodist Church were attackted by the immigration officials. Senior leaders of National Council of Churches in Korea (KNCC), Buddhist leaders, film directors, actors and actresses, medical doctors released statements on opposing the forced deportation and legalizing all undocumented migrant workers. On January 7, 2004 after a protest demonstration in front of the Bangladesh Embassy riot police and immigration officials arrested two migrants. On the next day a protest rally was held in condemning the Ministry of Justice that allowed brutal attack on migrants and migrants' rights advocates. Between January 16 and 21 the protest group participated in the World Social Forum 2004 in Mumbai, India in order to make public the ongoing migrants' struggle in Korea and strengthen the network and solidarity with migrant rights groups. On 20 the Office for Government Policy Coordination released measures to extend grace period for undocumented migrants again. On February 6 the migrants and Korean Chinese groups concluded a 84-day sit-in protest declaring the 2nd round of their struggle. The decision was made after the Government agreed on extention of grace period to voluntarily leave the country in exchange for a guarantee they could return legally later. II. The theme "migrant workers" became one of three main topics discussed in the XIV World Congress of Labour Law and Social Security, which was held in Seoul from September 26 through 30, 1994. According to the ILO Convention No. 143, the term "migrant worker" means a person who migrates or who has migrated from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant worker.(Art. 11, Para. 1) The ILO Convention No. 143 of 1973, which came into force on December 9, 1978 in supplement to the Convention No. 97 of 1949, gives further provisions concerning migrations in abusive conditions and the promotion of equality of opportunity and treatment of migrant workers. Each member state for which this Convention is in force shall undertake to respect the basic human rights of "all migrant workers"(Art. 1). In order to prevent and to eliminate migrations in abusive conditions Article 3 of the Convention No. 143 stipulates as follows: Each Member shall adopt all necessary and appropriate measures, both within its jurisdiction and in collaboration with other Members (a) to suppress clandestine movements of migrants for employment and illegal employment of migrants, and (b) against the organisers of illicit or clandestine movements of migrants for employment departing from, passing through or arriving in its territory, and against those who employ workers who have immigrated in illegal conditions. Article 9, Paragraph 1 of the Convention No. 143 reads: "Without prejudice to measures designed to control movements of migrants for employment by ensuring that migrant workers enter national territory and are admitted to employment in conformity with the relevant laws and regulations, the migrant worker shall, in cases in which these laws and regulations have not been respected and in which his position cannot be regularised, enjoy equality of treatment for himself and his family in respect of rights arising out of past employment as regards remuneration, social security and other benefits." According to Article 10 of the Convention, each Member for which the Convention is in force undertakes to declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory. Each Member shall also, by methods appropriate to national conditions and practice, in consultation with representative organisations of employers and workers, formulate and apply a social policy appropriate to national conditions and practice which enables migrant workers and their families to share in advantages enjoyed by its nationals while taking account, without adversely affecting the principle of equality of opportunity and treatment, of such special needs as they may have until they are adapted to the society of the country of employment.(Art. 12 (e)) But the provisions concerning equality of opportunity and treatment do not apply to - (a) frontier workers; (b) artistes and members of the liberal professions who have entered the country on a short-term basis; (c) seamen; (d) persons coming specifically for purposes of training or education; (e) employees of organisations or undertakings operating within the territory of a country who have been admitted temporarily to that country at the request of their employer to undertake specific duties or assignments, for a limited and defined period of time, and who are required to leave that country on the completion of their duties or assignments.(Art. 11, Para. 2) To Korea hundreds of thousand workers mostly from Asian countries have been admitted as the so-called "vocational trainees" and later "industrial trainees." The question is whether the "vocational trainees" or "industrial trainees" admitted to Korea fall under the category of "the persons coming specially for purposes of training or education", as defined in Art. 11, Para. 2(d) of the Convention. Unfortunately, the answer to this question is negative. Most of the "trainees" admitted to Korea are sent directly to undertakings which are not prepared to give ordinary vocational training. The sit-in strike of the Nepalese workers in January 1995 triggered a series of discussions to better the situation of the migrant workers in Korea. Without equal treatment of the migrant workers in labour law and social security, the "globalization" would remain mere political propaganda. In this sense, it is expected that the new EPS is able to find right ways to design national and international policy to promote and guarantee equality of opportunity and treatment in respect of employment, and of other rights related thereto and to respect the basic human rights of all migrant workers.