Obstruction of Performance of Official Duties by Fraudulent Means and Violation of IMMIGRATION ACT vs. Non-penalization clause of the Refugee Convention(Article 31(1))

In 2023, the Supreme Court of Korea ruled on a case involving an Iranian national who had entered the country by fraudulently obtaining a business visa. Although the individual’s actual intention was to apply for refugee status, he acquired an invitation letter under false pretenses. The Court found him guilty of interfering with official duties by deception and of violating the Immigration Act. However, it granted exemption from punishment, citing Article 31(1) of the 1951 Refugee Convention as the legal basis for the exemption. Although Korea enacted its Refugee Act in 2012, effective from 2013, the law only incorporates the non-refoulement provision of Article 33 of the Refugee Convention. It does not reflect the non-penalization clause of the Refugee Convention. The Supreme Court thus invoked Article 31(1) of the Refugee Convention directly as a ground for exempting the defendant from punishment. Since Korea acceded to the Convention in 1992 and it came into force domestically in 1993, the Convention holds the same legal authority as domestic law under Article 6(1) of the Korean Constitution. This article first examines the charges of obstruction of official duties by deception and violation of the Immigration Act that may apply in cases where individuals use false invitation letters to enter Korea (Section II). It then analyzes the content of Article 31(1) of the Refugee Convention—still unfamiliar in Korean legal practice—and explores why this provision may serve as a ground for exemption from punishment (Section III). In light of the global increase in refugee movements, Section IV reviews current international discourse on the non-penalization clause, with a particular focus on the contentious requirement that refugees must arrive “directly from a territory where their life or freedom was threatened.” Finally, Section V argues that, although the Supreme Court has affirmed the direct applicability of Article 31(1), further legislative measures are necessary to ensure its effective implementation in Korea’s legal system.