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인권지향적 형사사법체계 구축을 위한 예비 연구 : 외국인의 절차보장 강화를 중심으로
제목 인권지향적 형사사법체계 구축을 위한 예비 연구 : 외국인의 절차보장 강화를 중심으로
표지 인권지향적 형사사법체계 구축을 위한 예비 연구 : 외국인의 절차보장 강화를 중심으로 저자 김대근, 김경찬
등록일 2019-01-31
분류기호 18-AB-07
발간일 2018년 12월
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목차 국문요약 ····································································1 ❘제1장❘ 연구의 목적과 방법 ∙ 김대근 ··································5 제1절 연구의 목적 ································································7 제2절 연구의 범위와 대상 ·················································11 제3절 연구의 방법 ···························································13 ❘제2장❘ 외국인에 대한 형사절차 관련 기초 ∙ 김대근 ·······15 제1절 외국인이 향유하는 인권 또는 기본권의 범위 ··································17 1. 헌법상 외국인의 기본권 주체성에 관한 논의 ···········································17 가. 외국인에게 기본권 주체성을 인정하는 근거 ···············································17 나. 외국인에게도 인정되는 기본권의 구체적 범위 ·········································19 다. 적법절차의 원칙 ··························································19 2. 외국인에 대한 형사절차에서 국제인권규범의 의의 ··································21 가. 국제인권규범의 의의 ····························································21 나. 관련 국제인권규범 ····························································22 제2절 외국인에 대한 형사절차 관련 주요 법령 ·········································24 1. 형사소송부속법령 ·······························································24 가. 외국인범죄수사처리지침(법무부예규) ····························································24 나. (경찰청) 범죄수사규칙 제12장 제4절 ··························································25 다. 「출입국사범 단속과정의 적법절차 및 인권보호 준칙」·······························25 라. 통역・번역 및 외국인 사건 처리 예규(재판예규) ·········································26 마. 기타 자료 ··································································26 2. 출입국관리법 ······························································27 가. 출입국관리법의 주요내용 ·······················································27 나. ‘출입국사범’의 의미 및 유형 ·············································28 다. ‘국익위해(危害) 외국인’에 대한 사전적・사후적 배제조치: 입국금지, 보호조치 및 강제퇴거(강제추방) 등 ·········································31 라. 출입국관리공무원의 조사권한 ··············································38 마. 출입국사범에 대한 조사와 처리 ····················································39 바. 문제의 소재 ································································40 3. 인신보호법 ··········································································42 4. 기타 법률 ····································································43 제3절 외국인 범죄 관련 기본적 통계자료 ··················································44 1. 국내체류 외국인의 유형 및 현황 ······················································44 2. 외국인 범죄 현황 ···························································49 가. 지방출입국・외국인관서에서 처리한 출입국사범 ··········································49 나. 일반수사기관에서 처리한 외국인 범죄 ························································52 ❘제3장❘ 외국인에 대한 형사절차에서의 인권보장 ∙ 김경찬 ·· 55 제1절 범죄인지 및 수사개시 ·················································57 1. 출입국사범의 경우 출입국・외국인관서의 전속적 수사권? ·······················57 2. 출입국・외국인관서의 출입국사범 단속 ·······················································60 가. 구체적 사례: 우즈베키스탄 유학생 연행 사건 ············································60 나. 관련 규정: 단속행위 관련 출입국관리공무원의 준수사항 ··························61 다) 단속의 적법성 판단기준 ··························································63 3. 외국인 고용주의 신고에 대한 이의제도? ···················································65 4. 형사절차에 대한 안내 및 정보제공 ····························································66 제2절 수사단계 ···································································67 1. 일반 형사범에서 외국인의 체포 및 구속 ···················································67 2. 출입국・외국인관서의 출입국사범 조사 ·······················································68 가. 문제의 소재: ‘조사’의 성격 ··························································68 나. 임의조사 방법 ································································70 다. 강제조사 방법 ··································································71 라. 보호시설의 운영 ····································································87 3. 변호인의 도움을 받을 권리 ·····························································90 4. 통역의 문제 ··················································91 5. 수사 중 체류기간 만료의 경우 ···································································92 6. 수사관의 욕설이나 모욕 ··················································92 7. 압수물의 환부, 가환부 ················································93 8. 외국인 피의자 접견・통신권 관련 ································································93 9. 범죄인인도 ·············································································94 가. 범죄인 인도의 원칙과 인도범죄 ···································································94 나. 범죄인 인도 청구 현황 ······················································95 다. 범죄인 인도의 어려움과 한계 ·······································································95 제3절 재판단계 ································································96 1. 형사재판 절차 안내 관련 ··················································96 2. 사건관련 안내 익명처리 관련 ··················································97 3. 통역번역 관련 ······························································97 가. 영장실질심사 관련 ························································97 나. 중계장치 통역관련 ·······························································98 다. 순차통역과 동시통역 ·························································98 라. 번역관련 ········································································99 4. 본국 전과 기록 확인의 문제 ·······································································99 가. 현황 ············································································99 나. 원인 및 개선방안 ························································100 5. 집행유예의 문제 ····················································102 6. 항소기간 고려에 따른 퇴거집행 지연 문제 ·············································104 가. 강제퇴거집행을 위한 보호의 의의 ·····························································104 나. 예시사례 ············································································104 다. 소결 ················································································105 7. 벌금형 선고받은 경우 강제퇴거의 문제 ··················································106 8. 불법체류자 증인관련 ·······················································108 제4절 형집행 단계 ············································109 1. 수형자이송 관련 ···························································109 가. 수형자의 국외이송 ·······················································109 나. 국외이송의 요건 ······················································110 다. 외국인 수형자의 국외이송관련 ···································································110 2. 외국인 집행유예 선고의 효과성 문제 ······················································111 가. 문제점 ·············································································111 나. 대안 1 ··········································································111 다. 대안 2 ······································································111 3. 추징금 선고 외국인에 대한 강제퇴거명령 및 보호명령의 문제 ············112 4. 경범죄 상습 위반자에 대한 제재 문제 ····················································113 가. 문제점 ··································································113 나. 대안 ········································································113 5. 외국인수형자 교정처우 ···························································114 제5절 사회복귀 단계 ················································116 1. 사회봉사명령 등의 실효성 문제 ·······························································116 2. 사회통합프로그램 ······························································122 제6절 통계 및 정보수집 ···················································123 1. 국내 차원 ···································································123 2. 국제적 협력 ····························································124 ❘제4장❘ 요약 및 후속연구를 위한 세부쟁점 ∙ 김대근 ·····125 1. 논문 ·············································································132 2. 서적 ·········································································133 3. 기타 참고자료 ·····································································134 참고문헌 ··········································································133 Abstract ·········································································139 부록 ················································································143 [부록 1] 통역・번역 및 외국인 사건 처리 예규, 재판예규 제1432호 ·····141 [부록 2] 외국인범죄수사처리지침 ·····························································149 [부록 3] 출입국사범 단속과정의 적법절차 및 인권보호 준칙 ·················152
요약

국제법 및 일반적으로 승인된 보편적 인권 이념에 의하면 외국인일지라도 인간으로서의 권리를 향유합니다. 적법절차의 원칙은 그 나라 국민뿐만 아니라 외국인에 대해서도 지켜져야 할 원칙이고, 가장 중한 제재인 형사제재와 관련된 형사절차에서는 적법절차의 원칙은 더욱 강조됩니다. 이러한 점에서 한 나라의 외국인에 대한 형사절차가 보편적 인권 및 적법절차의 원칙에 부합하는 방향으로 형성되어 있는지 여부는 그 나라 사법제도의 수준을 나타내 주는 지표라고 볼 수 있습니다. 한편 법령상의 외국인에 대한 형사절차가 인권 및 적법절차의 원칙에 부합하는 방향으로 형성되어져 있을지라도 법적용·집행 기관이 실무상 관련 법규정을 어떻게 적용·집행하고 있는가에 따라 외국인에 대한 형사절차에서 외국인의 인권보장 및 적법절차 원칙의 준수정도는 달라질 수 있습니다. 어느 나라를 막론하고 외국인은 그 나라에서 소수자에 해당하고, 그 나라 국민에 비해 불합리한 차별을 당하는 경우가 자주 발생하는데, 외국인이 범죄자인 경우 비록 법규정은 인권 및 적법절차의 원칙에 부합하는 방향으로 형성되어져 있을지라도 실무 법적용·집행에서 불합리한 차별이 이루어질 가능성이 있기 때문입니다. 이러한 점에서 외국인에 대한 형사절차가 외국인의 인권 및 적법절차의 원칙을 준수하는 방향으로 이루어지고 있는지 파악하기 위해서는 외국인에 대한 형사절차 관련 법규정의 내용을 살펴보는 것뿐만 아니라 그러한 법규정들이 실무상 어떻게 적용·집행되고 있는지를 함께 살펴보아야 합니다.
외국인 입국자 및 국내 체류 외국인의 증가와 함께 외국인 범죄가 증가하면서 우리나라에서도 근래에 외국인 범죄의 실태를 다루거나 외국인 범죄에 대한 형사정책적 대응방안을 주제로 하는 연구는 많이 이루어지고 있습니다만, 외국인에 대한 형사절
차가 외국인의 인권을 적절하게 보장하고 적법절차의 원칙을 준수하는 방향으로 형성되어져 있는지에 대한 연구는 상대적으로 많지 않습니다. 외국인에 대한 형사절차의 수가 증가하고 있고, 이러한 경향은 앞으로도 지속될 것으로 보이는 상황에서 우리나
라의 외국인에 대한 형사절차가 법령상 외국인의 인권을 적절히 보장하고 적법절차 원칙을 준수하는 방향으로 형성되어져 있는지, 그리고 외국인에 대한 형사절차 실무도 그러한 방향으로 이루어지고 있는지를 살펴보고, 그렇지 못한 경우 개선방안을 모색하는 것이 매우 필요합니다.
현재 우리나라는 대한민국과 재한외국인이 서로 이해하고 존중하는 사회 환경을 만들어 대한민국의 발전과 사회통합에 이바지하도록 하기 위해서 「재한외국인 처우기본법」을 제정하는 것을 비롯, 동법에 따라 법무부장관은 5년 마다 외국인정책기본 계획을 수립하고 있습니다. 그러나, 정부 또한 형사절차에서 외국인의 인권보장을 강화하는 방안에 대해 관심을 가지고 있지만, 구체적인 문제의식을 드러내거나 개선방안을 모색하는데 까지는 나아가지 못하고 있다는 점에서, 외국인에 대한 형사절차의 현황을 체계적으로 파악하여 외국인의 인권보장을 강화하기 위한 방안은 지금 당장 필요한 고민이기도 합니다.위와 같은 문제의식 하에 본 연구에서는 외국인에 대한 형사절차를 소송경제의 이익 등 합목성의 요청 그리고 사법적 정의 및 실체진실 발견의 요청과의 조화 속에 외국인의 인권과 기본권을 보장하고 특히 적법절차의 원칙을 강조하기 위한 형사정책적 대안을 마련하기 위한 예비연구를 수행하였습니다. 특히 본 연구가 연구진은 궁극적 대안을 모색하기 위한 예비연구라는 점을 감안하여, 법령 및 실무를 통해 외국인에 대한 형사절차의 주요 쟁점을 도출하고, 이 절차 속에서 외국인의 인권보호와 법집행의 합리성이 충돌하는 지점을 파악하는데 중점을 두었습니다. 당연하게도 후속연구에서는 본 예비연구에서 제시된 문제점 및 쟁점을 위주로 구체적인 개선방안과 대안을 모색해야 할 것입니다.

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