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건국대학교 이주사회통합연구소> Journal of Migration and Social Integration (JMSI)> Status and Challenges of Constitutional Rights to Education of Foreigners

Status and Challenges of Constitutional Rights to Education of Foreigners

Pil-woon Jung
  • : 건국대학교 이주사회통합연구소
  • : Journal of Migration and Social Integration (JMSI) 6권1호
  • : 연속간행물
  • : 2021년 02월
  • : 37-76(40pages)
Journal of Migration and Social Integration (JMSI)

DOI


목차

Ⅰ. Introduction
II. Subjectivity of Foreigners and Constitutional Rights to Education
III. Current Status and Problems in School Education of Foreigners
IV. Conclusion
Reference

키워드 보기


초록 보기

As globalization intensifies, the number of foreigners receiving education in Korea is continuously on the rise. The purpose of this article is to examine the extent to which foreigners’ Constitutional rights to education are guaranteed, and to suggest directions that are needed for improvement of current problems. To achieve this purpose, first of all, we reviewed from the perspective of constitutional theory whether foreigners have the subjectivity of Article 31 of the Constitution(II). We also reviewed to what extent foreigners are guaranteed preschool, elementary and secondary education, and domestic adaptation education under the current law(III). Finally, conclusions were drawn from the above discussion(IV).
The discussion of this article is as follows. First, more attention should be paid on this topic. As can be seen from the lack of systematic statistics on this, this study is relatively underdeveloped from a policy and research perspective. Second, it has traditionally been interpreted that Constitutional right to education in Article 31 is recognized as one of the social rights and is not granted to foreigners. However, these days, an interpretation theory has been raised that recognizes this as human rights and grants constitutional rights even to foreigners. I would argue that the liberal element of the Constitutional right to education is a fundamental right that has the nature of human rights, so it is in principle to be granted to foreigners as well. As for the social rights element, it is reasonable to recognize in principle if the foreigner has a strong degree of incorporation into our socio-political community. As a result of demanding equality, the element of equal rights can be recognized by foreigners in principle, if the state has to act passively, but if it is active, I suggest that it should be limited. Third, the current Early Childhood Education Act does not stipulate the possibility of foreigners entering kindergarten, procedures and conditions, and tuition fees. Nevertheless, in the field of early childhood education, foreigners who want to attend school are enrolled by granting the qualification to attend kindergarten without asking whether the stay is legal through active interpretation of the authority. In the light of the political and social integration functions and effects of education, I proposed a more active policy promotion and social consensus. Fourth, the current elementary and secondary education act ensures that their children can receive elementary, junior high, and high school education regardless of the legality of their stay. In addition, the Ministry of Education has implemented several policies to promote this. Considering the Korean Constitution that regulates international pacifism and the UN Convention on the Rights of the Child to which Korea has joined, this is a desirable legislation and policy. However, it is consistent with the purpose of Article 28 of the UN Convention on the Rights of the Child to more clearly define foreign children as subjects of compulsory education. Since this is only a matter of standardizing the existing situation, it was recommended to amend it quickly. Furthermore, it is guaranteed that foreign children of illegal immigrants can receive education without discrimination, but many foreign children of illegal immigrants are known to not receive elementary and junior high school education for fear of being discovered. Therefore, I proposed that the law prohibits the search for illegal immigrants based on the child’s record. Fifth, in accordance with the Multicultural Family Support Act and The Framework Act on the Treatment of Foreigners Residing in the Republic of Korea, various education programs such as language education and social adaptation education for marriage immigrants are being implemented. Considering all the contents and legal system including education, duplication and conflict occur in both laws, so I suggested that special education should be regulated and implemented in one law in the long term to unify the delivery system and make it more efficient. However, the form of a single law, such as the ‘Multicultural Education Support Act’ currently pending in the National Assembly, is evaluated as undesirable, and I insist to establish a basis for the integrated law of both laws or one of them, or to stipulate it in the Elementary and Secondary Education Act and its enforcement decree. Sixth, it is known that the current education of foreign students for their parents is fragmentary and non-professional, so the educational effectiveness is very low. In order to improve this, I recommended that the parent education of foreign students be operated by professional personnel. Finally, I also recommended education for minority understanding for the majority.
(pwjung@knue.ac.kr)

UCI(KEPA)

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  • : 2508-397X
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  • : 연속간행물
  • : 2016-2021
  • : 55


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The COVID-19 pandemic is not only the most extensive to afflict humanity in the world in a century, but is a major public health emergency, has spread faster and wider than any other in China since the founding of the People's Republic of China in 1949, and has proven to be the most difficult to contain. Through painstaking efforts and tremendous sacrifice, China has succeeded in turning the situation of COVID-19 pandemic around. The COVID-19 pandemic prevention and control is being conducted on an ongoing basis. Migration administration emergency response plays an irreplaceable role on the fight against the COVID-19 pandemic, especially inbound cases. Due to the world's most population and second largest economy, Chinese migration administration emergency response significantly impact world's fighting against the COVID-19 pandemic and people cross border movement. Rich experiences including the improvement of migration administration emergency response system have been accumulated to ensure success of fighting. Meanwhile, it inspires us to rethink about the value of life, the role of migration administration emergency response, the importance of migrant right protection.

2Status and Challenges of Constitutional Rights to Education of Foreigners

저자 : Pil-woon Jung

발행기관 : 건국대학교 이주사회통합연구소 간행물 : Journal of Migration and Social Integration (JMSI) 6권 1호 발행 연도 : 2021 페이지 : pp. 37-76 (40 pages)

다운로드

(기관인증 필요)

초록보기

As globalization intensifies, the number of foreigners receiving education in Korea is continuously on the rise. The purpose of this article is to examine the extent to which foreigners' Constitutional rights to education are guaranteed, and to suggest directions that are needed for improvement of current problems. To achieve this purpose, first of all, we reviewed from the perspective of constitutional theory whether foreigners have the subjectivity of Article 31 of the Constitution(II). We also reviewed to what extent foreigners are guaranteed preschool, elementary and secondary education, and domestic adaptation education under the current law(III). Finally, conclusions were drawn from the above discussion(IV).
The discussion of this article is as follows. First, more attention should be paid on this topic. As can be seen from the lack of systematic statistics on this, this study is relatively underdeveloped from a policy and research perspective. Second, it has traditionally been interpreted that Constitutional right to education in Article 31 is recognized as one of the social rights and is not granted to foreigners. However, these days, an interpretation theory has been raised that recognizes this as human rights and grants constitutional rights even to foreigners. I would argue that the liberal element of the Constitutional right to education is a fundamental right that has the nature of human rights, so it is in principle to be granted to foreigners as well. As for the social rights element, it is reasonable to recognize in principle if the foreigner has a strong degree of incorporation into our socio-political community. As a result of demanding equality, the element of equal rights can be recognized by foreigners in principle, if the state has to act passively, but if it is active, I suggest that it should be limited. Third, the current Early Childhood Education Act does not stipulate the possibility of foreigners entering kindergarten, procedures and conditions, and tuition fees. Nevertheless, in the field of early childhood education, foreigners who want to attend school are enrolled by granting the qualification to attend kindergarten without asking whether the stay is legal through active interpretation of the authority. In the light of the political and social integration functions and effects of education, I proposed a more active policy promotion and social consensus. Fourth, the current elementary and secondary education act ensures that their children can receive elementary, junior high, and high school education regardless of the legality of their stay. In addition, the Ministry of Education has implemented several policies to promote this. Considering the Korean Constitution that regulates international pacifism and the UN Convention on the Rights of the Child to which Korea has joined, this is a desirable legislation and policy. However, it is consistent with the purpose of Article 28 of the UN Convention on the Rights of the Child to more clearly define foreign children as subjects of compulsory education. Since this is only a matter of standardizing the existing situation, it was recommended to amend it quickly. Furthermore, it is guaranteed that foreign children of illegal immigrants can receive education without discrimination, but many foreign children of illegal immigrants are known to not receive elementary and junior high school education for fear of being discovered. Therefore, I proposed that the law prohibits the search for illegal immigrants based on the child's record. Fifth, in accordance with the Multicultural Family Support Act and The Framework Act on the Treatment of Foreigners Residing in the Republic of Korea, various education programs such as language education and social adaptation education for marriage immigrants are being implemented. Considering all the contents and legal system including education, duplication and conflict occur in both laws, so I suggested that special education should be regulated and implemented in one law in the long term to unify the delivery system and make it more efficient. However, the form of a single law, such as the 'Multicultural Education Support Act' currently pending in the National Assembly, is evaluated as undesirable, and I insist to establish a basis for the integrated law of both laws or one of them, or to stipulate it in the Elementary and Secondary Education Act and its enforcement decree. Sixth, it is known that the current education of foreign students for their parents is fragmentary and non-professional, so the educational effectiveness is very low. In order to improve this, I recommended that the parent education of foreign students be operated by professional personnel. Finally, I also recommended education for minority understanding for the majority.
(pwjung@knue.ac.kr)

다운로드

(기관인증 필요)

초록보기

Foreign workers in Korea have to remain tied to the employer's workplace throughout the country's stay. But such a policy thoroughly blocks workplace changes due to the voluntary wishes of workers and has many side effects. This is because these policies completely ignore human nature in pursuit of economic interests. Rather, these policies only provide a justification for foreigners who leave the workplace to rationalize their actions. Under this consciousness of the problem, this study critically reviewed the additional system of employment and seasonal work system under the Immigration Act as a system for utilizing foreign workers in the agricultural sector.
In conclusion, it was suggested that the additional system of employment in the crop cultivation industry where there is a high possibility of intermediary exploitation should be officially abolished, and in relation to the seasonal work system, it is urgent to prepare legal protection regulations reflecting the characteristics of seasonal work. Furthermore, it suggested that, in the field of at least agriculture and fisheries, the restrictions on working hours were not properly regulated, so that the restriction on the specific workplace should no longer be a condition of the employment permit, and the workplace change within a single industry where the work permit was granted should be allowed in principle. (jynine@kgu.ac.kr)

4A Study on the Nationality of Overseas Adoptees

저자 : Yoon-cheol Choi

발행기관 : 건국대학교 이주사회통합연구소 간행물 : Journal of Migration and Social Integration (JMSI) 6권 1호 발행 연도 : 2021 페이지 : pp. 127-172 (46 pages)

다운로드

(기관인증 필요)

초록보기

The number of Korean nationals adopted overseas has reached about 170,000 as of 2018 since 1958 when adoption statistics were written. If the number of overseas adoptees concentrated after the Korean War before statistics was estimated to be about 30,000, the number of overseas adoptees from 1950 is expected to exceed 200,000.
In the first chapter, this article presents the necessity and purpose of simplifying acquisition of nationality for overseas adoptees. In the second chapter, a basic review of the legal theory related to the nationals and nationality is conducted. It examines the conceptual differences between nationals, Koreans residing abroad, Koreans with foreign nationality, and overseas adoptees. Next, the significance of nationality and the requirements and methods of acquiring and retaining nationality under the current 「Nationality Act」 are examined in relation to overseas adoptees. In particular, it looks at the regulations on simplified naturalization, special naturalization, nationality restoration, concomitant acquisition, re-acquisition and multiple nationality. In the third and fourth chapters, we focus on overseas adoptees and examine the methods, types, and possibilities of expansion of overseas adoptees according to the 「Nationality Act」. In particular, the actual applicability will be reviewed by dividing the case where overseas adoptees acquire the nationality of the adopting country and lose their Korean nationality, and the case where the overseas adoptees do not acquire the nationality of the adopting country and maintain Korean nationality. Next, it examines whether there is room for simplifying or expanding the requirements for granting nationality in the current 「Nationality Act」 and, if possible, what legal principles should be applied. To this end, it analyzed Korea's overseas adoption system and actual process, and evaluated whether it could hold state responsibility for overseas adoption based on the Constitution. As a conclusion, the last chapter affirms the state responsibility for overseas adoption and highlights the need to improve the “nationality law” for overseas adoptees as the first step to fulfilling the state responsibility.
In particular, when an overseas adoptee expresses an active intention to confirm the identity of the Republic of Korea, such as wanting to have the nationality of the Republic of Korea, the state needs to respond to this through active state actions, including legislation. Legislation and policies to embrace overseas adoptees should not be made in terms of tolerance or benefit, but in view of reflection that the state has failed to faithfully fulfill its obligations to protect its citizens.
(felixcyc@konkuk.ac.kr)

5Promotion of Human Rights through Support for Finding Relatives of Overseas Adoptees

저자 : Sang-woo Chong , Min-sol Lee

발행기관 : 건국대학교 이주사회통합연구소 간행물 : Journal of Migration and Social Integration (JMSI) 6권 1호 발행 연도 : 2021 페이지 : pp. 173-214 (42 pages)

다운로드

(기관인증 필요)

초록보기

This study started with the recognition of the support policy for finding relatives of Korean adoptees abroad as an important means to promote the human rights of Korean adoptees abroad. In Korea, about 200,000 children have been adopted overseas so far, but rather than promoting the welfare of adopted children, it was aimed at avoiding parenting responsibility of birth parents and the state. Overseas adopted Koreans grew up experiencing confusion of their identity, and after their growth, finding relatives including birth parents and exchanges with Korea are recognized as important human rights. However, in Korea, the privacy of biological parents and protection of personal information have been prioritized. Therefore, the human rights of overseas adoptees were not sufficiently guaranteed, and there were many obstacles to finding relatives as well. In this study, measures to promote human rights including finding relatives of Korean adoptees abroad were sought. In particular, this study attempted to present alternatives after examining the reality and normative grounds for finding relatives of Korean adoptees abroad, analyzing the progress and limitations of support policies for finding relatives that have been in progress. As an alternative, the establishment of a human material bank, a so-called gene bank, was viewed as an important means. In addition, by promoting the rights and interests of Korean adoptees abroad, it was intended to confirm their identity and propose a support policy to foster global citizenship. It is expected that it will contribute to the promotion of human rights of overseas adoptees through such search for relatives and support for exchanges with their home countries.
(swchong@inha.ac.kr)

1
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초록보기

The COVID-19 pandemic is not only the most extensive to afflict humanity in the world in a century, but is a major public health emergency, has spread faster and wider than any other in China since the founding of the People's Republic of China in 1949, and has proven to be the most difficult to contain. Through painstaking efforts and tremendous sacrifice, China has succeeded in turning the situation of COVID-19 pandemic around. The COVID-19 pandemic prevention and control is being conducted on an ongoing basis. Migration administration emergency response plays an irreplaceable role on the fight against the COVID-19 pandemic, especially inbound cases. Due to the world's most population and second largest economy, Chinese migration administration emergency response significantly impact world's fighting against the COVID-19 pandemic and people cross border movement. Rich experiences including the improvement of migration administration emergency response system have been accumulated to ensure success of fighting. Meanwhile, it inspires us to rethink about the value of life, the role of migration administration emergency response, the importance of migrant right protection.

2Status and Challenges of Constitutional Rights to Education of Foreigners

저자 : Pil-woon Jung

발행기관 : 건국대학교 이주사회통합연구소 간행물 : Journal of Migration and Social Integration (JMSI) 6권 1호 발행 연도 : 2021 페이지 : pp. 37-76 (40 pages)

다운로드

(기관인증 필요)

초록보기

As globalization intensifies, the number of foreigners receiving education in Korea is continuously on the rise. The purpose of this article is to examine the extent to which foreigners' Constitutional rights to education are guaranteed, and to suggest directions that are needed for improvement of current problems. To achieve this purpose, first of all, we reviewed from the perspective of constitutional theory whether foreigners have the subjectivity of Article 31 of the Constitution(II). We also reviewed to what extent foreigners are guaranteed preschool, elementary and secondary education, and domestic adaptation education under the current law(III). Finally, conclusions were drawn from the above discussion(IV).
The discussion of this article is as follows. First, more attention should be paid on this topic. As can be seen from the lack of systematic statistics on this, this study is relatively underdeveloped from a policy and research perspective. Second, it has traditionally been interpreted that Constitutional right to education in Article 31 is recognized as one of the social rights and is not granted to foreigners. However, these days, an interpretation theory has been raised that recognizes this as human rights and grants constitutional rights even to foreigners. I would argue that the liberal element of the Constitutional right to education is a fundamental right that has the nature of human rights, so it is in principle to be granted to foreigners as well. As for the social rights element, it is reasonable to recognize in principle if the foreigner has a strong degree of incorporation into our socio-political community. As a result of demanding equality, the element of equal rights can be recognized by foreigners in principle, if the state has to act passively, but if it is active, I suggest that it should be limited. Third, the current Early Childhood Education Act does not stipulate the possibility of foreigners entering kindergarten, procedures and conditions, and tuition fees. Nevertheless, in the field of early childhood education, foreigners who want to attend school are enrolled by granting the qualification to attend kindergarten without asking whether the stay is legal through active interpretation of the authority. In the light of the political and social integration functions and effects of education, I proposed a more active policy promotion and social consensus. Fourth, the current elementary and secondary education act ensures that their children can receive elementary, junior high, and high school education regardless of the legality of their stay. In addition, the Ministry of Education has implemented several policies to promote this. Considering the Korean Constitution that regulates international pacifism and the UN Convention on the Rights of the Child to which Korea has joined, this is a desirable legislation and policy. However, it is consistent with the purpose of Article 28 of the UN Convention on the Rights of the Child to more clearly define foreign children as subjects of compulsory education. Since this is only a matter of standardizing the existing situation, it was recommended to amend it quickly. Furthermore, it is guaranteed that foreign children of illegal immigrants can receive education without discrimination, but many foreign children of illegal immigrants are known to not receive elementary and junior high school education for fear of being discovered. Therefore, I proposed that the law prohibits the search for illegal immigrants based on the child's record. Fifth, in accordance with the Multicultural Family Support Act and The Framework Act on the Treatment of Foreigners Residing in the Republic of Korea, various education programs such as language education and social adaptation education for marriage immigrants are being implemented. Considering all the contents and legal system including education, duplication and conflict occur in both laws, so I suggested that special education should be regulated and implemented in one law in the long term to unify the delivery system and make it more efficient. However, the form of a single law, such as the 'Multicultural Education Support Act' currently pending in the National Assembly, is evaluated as undesirable, and I insist to establish a basis for the integrated law of both laws or one of them, or to stipulate it in the Elementary and Secondary Education Act and its enforcement decree. Sixth, it is known that the current education of foreign students for their parents is fragmentary and non-professional, so the educational effectiveness is very low. In order to improve this, I recommended that the parent education of foreign students be operated by professional personnel. Finally, I also recommended education for minority understanding for the majority.
(pwjung@knue.ac.kr)

다운로드

(기관인증 필요)

초록보기

Foreign workers in Korea have to remain tied to the employer's workplace throughout the country's stay. But such a policy thoroughly blocks workplace changes due to the voluntary wishes of workers and has many side effects. This is because these policies completely ignore human nature in pursuit of economic interests. Rather, these policies only provide a justification for foreigners who leave the workplace to rationalize their actions. Under this consciousness of the problem, this study critically reviewed the additional system of employment and seasonal work system under the Immigration Act as a system for utilizing foreign workers in the agricultural sector.
In conclusion, it was suggested that the additional system of employment in the crop cultivation industry where there is a high possibility of intermediary exploitation should be officially abolished, and in relation to the seasonal work system, it is urgent to prepare legal protection regulations reflecting the characteristics of seasonal work. Furthermore, it suggested that, in the field of at least agriculture and fisheries, the restrictions on working hours were not properly regulated, so that the restriction on the specific workplace should no longer be a condition of the employment permit, and the workplace change within a single industry where the work permit was granted should be allowed in principle. (jynine@kgu.ac.kr)

4A Study on the Nationality of Overseas Adoptees

저자 : Yoon-cheol Choi

발행기관 : 건국대학교 이주사회통합연구소 간행물 : Journal of Migration and Social Integration (JMSI) 6권 1호 발행 연도 : 2021 페이지 : pp. 127-172 (46 pages)

다운로드

(기관인증 필요)

초록보기

The number of Korean nationals adopted overseas has reached about 170,000 as of 2018 since 1958 when adoption statistics were written. If the number of overseas adoptees concentrated after the Korean War before statistics was estimated to be about 30,000, the number of overseas adoptees from 1950 is expected to exceed 200,000.
In the first chapter, this article presents the necessity and purpose of simplifying acquisition of nationality for overseas adoptees. In the second chapter, a basic review of the legal theory related to the nationals and nationality is conducted. It examines the conceptual differences between nationals, Koreans residing abroad, Koreans with foreign nationality, and overseas adoptees. Next, the significance of nationality and the requirements and methods of acquiring and retaining nationality under the current 「Nationality Act」 are examined in relation to overseas adoptees. In particular, it looks at the regulations on simplified naturalization, special naturalization, nationality restoration, concomitant acquisition, re-acquisition and multiple nationality. In the third and fourth chapters, we focus on overseas adoptees and examine the methods, types, and possibilities of expansion of overseas adoptees according to the 「Nationality Act」. In particular, the actual applicability will be reviewed by dividing the case where overseas adoptees acquire the nationality of the adopting country and lose their Korean nationality, and the case where the overseas adoptees do not acquire the nationality of the adopting country and maintain Korean nationality. Next, it examines whether there is room for simplifying or expanding the requirements for granting nationality in the current 「Nationality Act」 and, if possible, what legal principles should be applied. To this end, it analyzed Korea's overseas adoption system and actual process, and evaluated whether it could hold state responsibility for overseas adoption based on the Constitution. As a conclusion, the last chapter affirms the state responsibility for overseas adoption and highlights the need to improve the “nationality law” for overseas adoptees as the first step to fulfilling the state responsibility.
In particular, when an overseas adoptee expresses an active intention to confirm the identity of the Republic of Korea, such as wanting to have the nationality of the Republic of Korea, the state needs to respond to this through active state actions, including legislation. Legislation and policies to embrace overseas adoptees should not be made in terms of tolerance or benefit, but in view of reflection that the state has failed to faithfully fulfill its obligations to protect its citizens.
(felixcyc@konkuk.ac.kr)

5Promotion of Human Rights through Support for Finding Relatives of Overseas Adoptees

저자 : Sang-woo Chong , Min-sol Lee

발행기관 : 건국대학교 이주사회통합연구소 간행물 : Journal of Migration and Social Integration (JMSI) 6권 1호 발행 연도 : 2021 페이지 : pp. 173-214 (42 pages)

다운로드

(기관인증 필요)

초록보기

This study started with the recognition of the support policy for finding relatives of Korean adoptees abroad as an important means to promote the human rights of Korean adoptees abroad. In Korea, about 200,000 children have been adopted overseas so far, but rather than promoting the welfare of adopted children, it was aimed at avoiding parenting responsibility of birth parents and the state. Overseas adopted Koreans grew up experiencing confusion of their identity, and after their growth, finding relatives including birth parents and exchanges with Korea are recognized as important human rights. However, in Korea, the privacy of biological parents and protection of personal information have been prioritized. Therefore, the human rights of overseas adoptees were not sufficiently guaranteed, and there were many obstacles to finding relatives as well. In this study, measures to promote human rights including finding relatives of Korean adoptees abroad were sought. In particular, this study attempted to present alternatives after examining the reality and normative grounds for finding relatives of Korean adoptees abroad, analyzing the progress and limitations of support policies for finding relatives that have been in progress. As an alternative, the establishment of a human material bank, a so-called gene bank, was viewed as an important means. In addition, by promoting the rights and interests of Korean adoptees abroad, it was intended to confirm their identity and propose a support policy to foster global citizenship. It is expected that it will contribute to the promotion of human rights of overseas adoptees through such search for relatives and support for exchanges with their home countries.
(swchong@inha.ac.kr)

1
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