외국인의 기본권 보호에 관한 연구

Abstract

ABSTRACT

A study on the Social Fundamental Rights of the Foreigner

Suh seok-won Constitutional Law Dept. of Law The Graduate School Pukyong National University

From the constitutional point of view, two approachs of studying about the human rights of aliens could be figured out. Of course, both are the same in the sense that the realization of human rights can not be achieved without the guarantee of state authority. One approach is based on the principle of 'a nation´s sovereignty'. According to this, the discussion of human rights is limited to nationals and aliens are discussed only in terms of reciprocity. The other approach based on the natural rights of man suggests that the status of aliens should be guaranteed in accordance with their human worth and dignity. The conventional view of the accepted theory stands in the position of the former with respect to alien's social fundamental rights, generally standing in position of the latter with respect to the rights of freedom, so it has taken the dualistic attitude. But now is the era of immigration coming under the flow of globalization, which makes it more difficult to maintain such an attitude. Now that with the generalization of international norms of human rights the distinction between the freedom rights and social fundamental rights has become relative, alien's human rights should be discussed from this point of view. From the perspective of the relative difference between the freedom rights and social fundamental rights, the value and role of the social fundamental rights should be recognized as human rights. In other words, aliens should be recognized as subjects of social fundamental rights. The social fundamental rights are important ones which are the basis for a life worthy of human beings, especially to the foreigner workers and marriage migrant women underprivileged in the country. This paper will discuss human rights abuses to foreigners living or staying in the country and seek to provide a constitutional perspective about the social rights of the foreigner. Specific details of social rights of the foreigner will be treated as a matter of restrictions of the fundamental rights and accordingly I will argue some solutions for the infringement of fundamental rights and the need for the state to protect them more actively.