(영문) 대전지방법원 2011.1.12. 선고 2010구합2038 판결

The following facts are not disputed between the parties, or are recognized by Gap evidence 1, Gap evidence 4 through 6, Eul evidence 1 through 8 (including each number), and the whole purport of the pleadings.

A. The Plaintiff was engaged in the manufacturing business from December 16, 199 to Chungcheongnam-gun B with the trade name "C", and on March 19, 2007, it was planned that the employment permit period will expire on May 8, 2010 as the period of employment permit for foreign workers D and E (hereinafter referred to as "foreign workers of this case") under Article 8 (4) of the former Act on the Employment, etc. of Foreign Workers (amended by Act No. 9789, Oct. 9, 2009) was extended twice from May 9, 2007 to May 8, 2008.

B. On March 3, 2010 and March 31, 2010, according to the Enforcement Rule of the Foreign Employment Act and the Enforcement Rule thereof, the Defendant sent to the Plaintiff a notice of the application period for re-employment of the instant foreign worker, by facsimile (F). On March 30, 2010, the Defendant sent to the Plaintiff a notice of the application period for re-employment, specifying the name of the instant foreign worker in the Plaintiff’s cell phone (G). On April 23, 2010, the expiration date of the application period under the Enforcement Rule of the Foreign Employment Act, sent by facsimile the notice of the application for employment permit and the procedure for the instant foreign worker, which is 15 days before the expiration date of the employment period.

C. However, on May 7, 2010, the day before the expiration of the employment permit period for foreign workers of this case, the Plaintiff submitted to the Defendant an application for extension of the employment permit period for foreign workers of this case. On May 11, 2010, the Defendant rejected the Plaintiff’s application on the ground that the Plaintiff did not comply with the submission period of the application for extension of the employment permit period pursuant to Article 18-2 of the Foreign Employment Act and Article 14-2(1) proviso of the Enforcement Rule of the Foreign Employment Act (hereinafter “instant disposition”).

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

① The Enforcement Rule of the Foreign Employment Act was amended on April 12, 2010. A foreign worker whose employment permit period expires after departure from the Republic of Korea and re-entry into the Republic of Korea to obtain employment permit, but the introduction of the employment permit period extension application system to omit such unnecessary departure procedure. ② The Defendant alleged that the above revised Enforcement Rule was notified the Plaintiff by facsimile and text message but did not receive it; ③ the Plaintiff did not receive any guidance on the extension period of employment permit for foreign workers even at the time of consultation with the Defendant due to the departure of a foreign worker who is a non-Korean employee on March 2010. ④ If the instant disposition was not revoked due to the difficulties of domestic employment, the Plaintiff could not seek skilled workers, and thus, it could not seek any disruptions in the operation of the Plaintiff company. In light of the above, the instant disposition taken on the ground that the Plaintiff failed to file an application for the extension of the employment permit period 15 days before the expiration of the employment permit was unlawful by abusing and abusing discretionary authority.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Nature of the instant disposition

(A) According to Article 18-2(1) of the former Foreigner Employment Act (amended by Act No. 1039, Jun. 4, 2010); Article 18-2(1) of the same Act provides that a foreign worker employed by an employer who has obtained an employment permit may be extended the period of employment to less than two years only once within the limit of two years for which the employer requested the re-employment permit to the Minister of Employment and Labor before departure. According to Article 14-2 of the Enforcement Rule of the Foreign Employment Act, in order for an employer to allow the extension of the period of employment to a foreign worker pursuant to Article 18-2 of the Act by 45 days prior to the expiration of the period of employment, the foreign worker shall submit an application for extension of the period of employment to the head of the competent employment security office having jurisdiction over the place where the period of employment permit expires, along with a copy of the business registration certificate, a copy of a passport, a standard employment contract, etc.

(B) Whether an administrative act is a binding act or discretionary act shall be determined individually in accordance with the form, system, or language of the provision based on which the pertinent disposition is based (see Supreme Court Decision 94Nu12302, Dec. 12, 195). The legislative intent of the Foreign Employment Act enacted for the purpose of promoting smooth supply and demand of human resources and balanced development of the national economy by systematically introducing and managing foreign workers, and the text of the provision under Article 18-2(1) of the former Foreign Employment Act, which, in principle, limits foreign workers’ employment activities to three years, as an exception to the provision under Article 18 of the Foreign Employment Act, which limits foreign workers’ employment activities to three years, a foreign worker is entitled to the qualification for legitimate employment in the Republic of Korea, and thus, the extension of employment period depends on the discretion of an administrative agency to permit the extension of employment period in exercising such discretion, and if the Defendant misleads the fact that serves as the basis for the disposition in exercising such discretion, or if there is a violation of the principle of proportionality or proportion, 200.

(2) Determination as to whether or not the discretionary power has been abused or abused

Therefore, the plaintiff's disposition of this case was considered as deviation from or abuse of discretionary authority. (1) In light of the above facts indicated above, Articles 6, 8, 18, 29, and 30 of the Foreign Workers Employment Act, if the employer intends to employ foreign workers, he shall obtain the permission, and the employment permit shall be limited to three years from the date of entry of the foreign worker, and the extension of the employment permit shall be limited to the case where it is difficult to maintain a normal employment relationship with the foreign worker. (4) The defendant's request for extension of the employment permit and the period for extension of the employment permit under Article 14-2 (1) of the Enforcement Rule of the Foreign Workers Employment Act shall be considered as an internal administrative rule of the Ministry of Public Administration and Security, and it is difficult to view that the defendant's request for extension of the employment permit and the period for extension of the employment permit under Article 14-2 (1) of the Immigration Control Act shall be made within the scope of the period of employment permit for the foreign worker.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.