Reconstruction of the status of migrants in the interpretation of the Constitution

Abstract

As the number of migrants residing in Korea gradually increases and they are active in various fields, migrants form political and socio-economic interests within the Republic of Korea, while fulfilling the role of bearing various rights and obligations provided by the state. It functions as a member of the national living community. This reality requires understanding the problem of migrants as a change in the structure and character of our society, not simply as a minority culture for mainstream society, and requires a fundamental discussion on this. The legal status of migrants is the starting point of these discussions, and it has a correlation with the subject matter ofalien‘s constitutional rights. The Constitution does not directly mention whether migrants can become subjects of basic rights. Therefore, the issue of whether migrants can enjoy the basic rights of our Constitution in a position similar to that of Korean citizens and if they can, whether the object of such enjoyment will be all the basic rights enjoyed by Korean citizens is a matter of constitutional interpretation. Nevertheless, the Constitutional Court recognized the subjectivity of basic rights only in terms of ‘human rights’ in the case of migrants who are in a ‘status similar to that of the people’ without specific grounds, but these ‘human rights’ are limited for the ‘interest of the people’. It can be, only a contradictory attitude. In the first place, if the Constitutional Court acknowledged a ‘status similar to that of the Korean people’ because it could not treat Koreans who had lost their nationality after moving abroad before the establishment of the Korean government as mere ‘aliens’, then in today’s multicultural society, members of the national living community of the Republic of Korea. It is necessary to seriously think about how to fulfill the “obligation to confirm and guarantee the basic inviolable human rights of individuals” stipulated in Article 10 of the Constitution for the numerous migrants living in a ‘status similar to that of citizens’. In addition, Article 6(2), Article 10 second sentence, and Article 6(1) of the Constitution should be actively interpreted to guarantee the legal status of migrants not only as legal rights but also as constitutional rights. In order for Korea, which is facing a low birth rate and an aging society, to develop sustainably, it is time to recognize various lifestyles and cultures of migrants, use human, economic, and cultural resources brought by migrants as new growth engines, and use diversity as a resource for innovation and creativity. The legal status of migrants should be considered in the task of a multicultural society.