Legislative Impact Analysis of the Emigration Act
I. Background and Purpose of Research
▶ Research Background
○ Given that the legislators' perception and the legal reality have fundamentally changed since the enactment of the Emigration Act in 1962, it is necessary to examine whether the act is still opportune and valid.
○ It is the duty of legislators to check whether the law come to the end of its life and adjust the outlived law, but it is difficult to find research focusing on the repeal of law in the area of legislative evaluation.
▶ Purpose of the Study
○ Evaluation of the Emigration Act is conducted through various methods such as reviewing the act’s developments, constitutional issues, and questions of legal framework, comparatively studying the act, and carrying out a survey.
○ Considering the evaluation of the Emigration Act, this research reviews the lifespan of law and the abolition of law. Specifically, the principles and standards for ex-post evaluation and the revocation of law are examined.
○ Taking the Emigration Act as an example, the general theory of legislative evaluation taking the abolition of law into account as a part of legal reform is proposed.
▶ History of the Emigration Act
○ With the population growth and the increase in unemployment, emigration has been a political concern since the 1950. The Emigration Act was enacted in 1962 as a legal basis for emigration policies.
- At the time of enactment, the Emigration Act was designed for the export of labor with the aim of setting appropriate population policy, stabilizing national economy, and enhancing national glory, and it did not allow people who were unsuitable for work to go abroad.
- As the Emigration Act has been revised several times, it changed to provide convenience for emigrants and smooth procedure. Its character has changed significantly, i.e. the regulations regarding the emigration agencies have increased and the restrictions on emigrants have decreased.
▶ Evaluation of the Emigration Act
○ The principle of system consistency derived from the rule of law requires legislators to maintain a system and balance between norms without contradiction in structure and content.
- The Emigration Act aims to provide convenience for emigrants and smooth procedure. However, some provisions, which are for administrative purposes and regulate immigration agencies, seem to be inconsistent with the purpose of the act. It is considered to have problems in terms of internal system consistency.
- Excluding the regulations on emigration agencies, several provisions prescribing restrictions on emigration, report of emigration and permanent return, and overseas transfer of property, etc. can be regulated by another laws.
○ The Emigration Act should not violate against people’s basic rights guaranteed by the Constitution in regulating the emigration of people. It is regarded that the current act restricts the emigrants’ freedom of movement and the freedom of occupation, but not invade their basic rights. However, a new consideration is needed on the regulations biased toward administrative expediency.
○ In the foreign cases, many countries have laws and regulations targeting immigrants entering the land, while not many countries have emigration laws regarding the emigration of their citizens.
- Germany, with more inflow of population than outflow, rarely has the Emigrant Protection Act (AuswSG). With the recognition of changes of legislative environment, the question whether the act still had effectiveness and efficacy has arisen.
- Labor-exporting countries like India, Pakistan, Indonesia, and the Philippines have the emigration law. It is noticeable that the countries’ legislative environment is completely different from that of Korea; Korea has a large influx of foreign workers, while the countries are exporting huge number of workers.
○ For evaluating the effectiveness of the Emigration Act, this study reviewed the trend of emigration report and examined the survey on the act targeting emigration agencies and legal experts.
- The number of emigration reports, which had increased since the enforcement of the act in 1962, has been continuously decreasing since the mid-1970s.
- According to the survey, provisions regulating emigration agencies and protecting emigrants who use the agency services can be evaluated as effective to some extent, but the role of the act is not acknowledged as significant in the process of emigration and the disputes related to emigration It is also notable that a significant number of respondents said that they were not fully aware of the Emigration Act.
▶ Life-cycle and Avocation of Law
○ In principle, most laws have no limited lifespan after enactment and adjust themselves to the present through revision. But if the purpose of a law cannot be achieved by amendments, it is desired to abolish the law to end its life.
○ Avocation of law denies all the legal validity of a law and removes the law from the legal system. It is done in accordance with the procedures prescribed in the Constitution and the law. The passage of time, drastic changes in the political situation and the social environment, and the decisions by the constitutional court can be the motives for abolishing law.
○ National sovereignty, the rule of law, the separation of powers, and the legislator's obligation to continuously improve law are grounds for abolishing law.
○ If the effectiveness of a law is questionable in the light of the principles, namely, inevitable conservation of law, system consistency, protection of legitimate expectations, practicability, efficiency or proportionality between cost and benefit, and timeliness. As legislative technical factors, accessibility and subsidiarity are considered.
○ Revocation of law is examined through ex-post impact analysis among the legislative impact analysis.
- Unlike most ex-post analysis for revising a law, the evaluation for repealing law has a meaning that a new state can be created by removing previous power and system.
○ If revocation of law is properly carried out, the rights of citizens can be realized, the systemic consistency and the uniformity of norm can be secured, the cost of law can be reduced, and the legitimacy of state action can be strengthened.
○ Revocation of law can be divided into several forms according to the legislative alternatives after abolition; simple abolition with no alternative to the repealed law, consolidation of laws, division of one or more laws into several laws with repeal of mother laws, and alternative legislation to repeal and replace previous laws.
▶ Revocation of Law and Legislative Impact analysis
○ In this study, an evaluation of the Emigration Act and a legislative impact analysis considering abolition of the law was examined.
○ Revocation of law seeks to restore the legitimacy of the legal system by removing a specific law, and ex-post evaluation provides essential data to determine whether the law should be abolished. The framework of legislative impact analysis for enacting or revising a law cannot be applied to this case; it should be modified and applied considering the creation and revocation of law.
Ⅲ. Expected Effects
○ The effectiveness of the Emigration Act is evaluated by conducting an ex-post evaluation of the act.
○ After conducting the ex-post evaluation on the Emigration Act, the study had gone a step further and sought the general principles and standards for abolishing law.
○ Considering that the most discussions on the regulatory impact analysis have presupposed that a law would persist, this study is meaningful as an impact analysis since it dealt with principles and indicators bearing in mind the possible abolition of law. It is expected that a discussion would arouse that can contribute to the examination of dysfunctional laws and improvement of the systematic consistency, timeliness, practicability, and efficiency of law.