Law Firm Pyeongan (Attorney Ahn Dai-hee in charge, Lee Young-hoon)

1. Article 18(1) of the Immigration Control Act provides, “When a foreigner intends to be employed in the Republic of Korea, he/she shall obtain the status of sojourn eligible for employment activities, as prescribed by Presidential Decree.” Article 18(3) provides, “No person shall employ any person who does not have the status of sojourn provided for in paragraph (1).” Article 94 Subparag. 9 of the same Act provides, “Any person who employs a foreigner who does not have the status of sojourn eligible for employment activities in violation of Article 18(3) shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won.”

In light of the language and text of the above legal provision, the interpretation of the penal provision, and the regulatory contents of the Act on the Protection, etc. of Dispatched Workers (hereinafter “Dispatch Act”), it is reasonable to view that the meaning of the “employment” under Articles 94 subparag. 9 and 18(3) of the Immigration Control Act refers to the act of receiving labor from a foreigner who does not have the status of sojourn eligible for employment activities and paying remuneration to him/her by being provided with labor. Therefore, even if the user company entered into a contract on temporary placement of workers or a contract equivalent thereto, and had the foreigner dispatched from the dispatched company to work for himself/herself, it cannot be deemed as an employment prohibited under Articles 94 subparag. 9 and 18(3) of the Immigration Control Act. Specific reasons are as follows.

A. Although the Immigration Control Act does not have a definition on "employment", it generally refers to a contract under which one of the parties agrees to provide labor to the other party, and the other party agrees to pay remuneration therefor (Article 655 of the Civil Act). (b) Interpretation of the penal law should be strict, and interpreting the direction unfavorable to the accused beyond the possible meaning of the text is not allowed pursuant to the prohibition of extended interpretation, which is the content of the principle of no punishment without law (see, e.g., Supreme Court en banc Decision 2015Do835, Dec. 21, 2017). The Dispatch Act defines a person who uses temporary agency workers under a worker dispatch contract as the user company (Article 2 subparag. 4), while the Labor Standards Act and the Occupational Safety and Health Act provide that the user company shall be the employer (Articles 34 and 35), there is no provision as to the application of the Immigration Control Act.

2. The summary of the prosecution of this case is that the defendant is employed by the referral of 40 foreign workers who are not qualified to lawfully engage in job-seeking activities from D(hereinafter referred to as D) that is a dispatched company in the case of C(hereinafter referred to as "C") operated by the defendant.

3. As to this, the lower court affirmed the first instance judgment that acquitted the Defendant on the ground of the reasons indicated in its reasoning, on the following grounds: (a) C entered into a contract with the dispatched worker D; (b) and (c) the Defendant was directly employed by the foreign workers of this case as human resources necessary for the package business of cosmetics containers and packaging; and (c) the foreign workers of this case were in the position of temporary agency workers between C and C; (b) it is difficult to view that the foreign workers of this case were in the position of temporary agency workers but in the position of temporary agency workers of Article 94(9) of the Immigration Control Act, it is difficult to view that the foreign workers of this case include the "employee dispatched

Examining the reasoning of the original judgment in light of the aforementioned legal principles and relevant legal principles and the evidence duly admitted by the lower court, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the employment, implied labor contract, and intentional intent under the Immigration Control Act, or by exceeding the bounds of attention due to the violation of logical and empirical rules, contrary to what is alleged in the grounds of appeal.

4. Therefore, the appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Chief Justice Lee Ki-taik

Justices Park Jung-hwa