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The Criteria for Assessing the Legitimacy of Legal Boundaries : Application in Positive Law - Focusing on Four Cases in the Law Governing Foreign Nationals -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2026, 14(3), pp.219~260
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : August 10, 2026
  • Accepted : August 22, 2026
  • Published : August 31, 2026

CHOI SAEM 1

1고려대학교

Accredited

ABSTRACT

A legal order comes into being by drawing its own boundaries, and this boundary-drawing constitutes the core of that order. Focusing on the grounds on which such boundary-drawing can be justified, this article applies four criteria for assessing the legitimacy of legal boundaries—function-boundedness, outcome-responsiveness, redescribability, and the non-vacancy of responsibility—to positive law and tests their practical utility. This article brings these four criteria to bear on the subject of foreign nationals. In an era in which cross-border movement has become a constant feature of life, foreign nationals are formally regarded as external to the national community, yet substantively situated within the protection and control of that legal order. This boundary position provides an occasion to reexamine the distinction between nationals and foreign nationals, and the distribution of status and eligibility built upon that distinction. With this problem in view, the article applies four cases drawn from the law governing foreign nationals, revealing the concrete implications of each of the four criteria from a different perspective. In doing so, it examines what justificatory burden these boundary categories must actually bear, and confirms the meaning and value of each criterion. These four criteria divide into a level of application (function-boundedness, outcome-responsiveness) and a level of structure (redescribability, the non-vacancy of responsibility), and the four cases each pass through two criteria at the level of application and two at the level of structure. This symmetry reveals that the four cases were not chosen at random, but arranged so as to target the two aspects along which a legal boundary is tested: the application of the boundary and the validity of the boundary itself. The special provision for foreign nationals under the National Basic Living Security Act is analyzed as a case in which function-boundedness fails to be carried through, insofar as the interests, logic, and methodology proper to one phase encroach upon another phase without independent renewed justification (Ⅱ). The simplified procedure under the Refugee Act is examined as a case in which outcome-responsiveness is not satisfied, insofar as the classificatory grounds and screening procedure fail to correspond to the gravity of the outcomes they produce (Ⅲ). The system of multiple nationality under the Nationality Act appears as a case that falls short of redescribability, insofar as the demand for redescription—raised against the premise of exclusive singular attribution by transnational migration and by those who bring it to the fore—remains incomplete owing to its own formal limits (Ⅳ). The reciprocity requirement under the State Compensation Act is shown as a case that fails to answer to the non-vacancy of responsibility, in that it forecloses, on grounds of nationality alone, the very channel through which responsibility could be asked (Ⅴ). In the course of this analysis, the article confirms that these problems are not peculiar to Korean law but are shared difficulties to which various countries have responded in different ways, and draws comparative reference points accordingly. The cases examined here are, in the end, so many boundary lines drawn by law. The single category of the foreign national is expressed through the distinction between national and foreign national, and between the rights of the citizen and the rights of the human, and unfolds across the four cases into distinct boundary lines—the presence or absence of eligibility for benefits, simplified versus ordinary procedure, single versus multiple nationality, and those who may claim compensation and those who may not. Through this, the article shows that defects scattered across different areas of law can be identified, within a single analytical framework, as problems of distinct character, and suggests that this framework may serve as a diagnostic tool applicable to future sites of legislation and adjudication.

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