(영문) 대구지방법원 2016.5.25. 선고 2015구합24170 판결

The defendant's disposition of denial of employment permission granted to Sejong Co., Ltd. on September 11, 2015 and the disposition of denial of application for change of the place of business made against the plaintiff on November 4, 2015 is revoked, respectively.

Reasons

1. Details of the disposition;

A. On August 6, 2014, the Plaintiff entered the Republic of Korea with the status of non-professional employment (E-9) sojourn on the ground of four arms, and was on May 29, 2015 and entered Korea again on August 10, 2015 while working at a domestic company, such as SY Industry Co., Ltd. and B Textiles factories.

B. The term of validity of the registration of job seeking was until August 28, 2015, and the period was extended by September 10, 2015 by submitting a medical certificate to the Defendant due to a post-nuclear surgery. The Plaintiff, after entering the Republic of Korea on August 10, 2015, conducted an interview with the Defendant at his/her request during job seeking on September 8, 2015 (hereinafter referred to as “non-party company”). However, on September 11, 2015, the person in charge of the non-party company applied for employment of four foreign workers including the Plaintiff on September 11, 2015 when the term of validity of the registration of job seeking expires, and the employee in charge of the Defendant rejected the above application on the ground that the Plaintiff’s electronic data was not computerized in the case of the Plaintiff (hereinafter referred to as “instant employment permit”).

D. After that, on October 30, 2015, the Plaintiff filed an application for extension of the application period to change the place of business with the Defendant on the ground that the Plaintiff was unable to change the place of business within the effective period of job-seeking registration, and accordingly, the Plaintiff applied for extension of the application period to change the place of business again.

Accordingly, on November 4, 2015, the defendant extended the period of application for the change of a place of business (Article 25(3) of the Act), and received an application for extension (Article 16(2) of the Enforcement Rule of the Act), and notified that the period of application for the change of a place of business is not available since the period of application for the change of the place of business was over, after the change of the place of business was over, the defendant made a notification that "the extension of the period of application for the change of the place of business is not possible" (hereinafter referred to as "disposition of rejection of the application in this case").

[Reasons for Recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 to 4, and Eul 15 evidence (including branch numbers), the purport of the whole pleadings

2. The plaintiff's assertion

A. On September 11, 2015, the Plaintiff requested the Defendant to grant employment permission with the non-party company on September 11, 2015, and the Defendant rejected the Plaintiff’s employment permission on the ground that the Plaintiff’s registration of job seeking expired. However, the Plaintiff’s commencement of work in the non-party company from September 9, 2015, and the change of the place of business had already been made within the effective period of employment registration but the employer delayed delivery of the intent to conclude the employment contract is illegal.

B. On September 9, 2015, prior to the expiration date of the term of validity of the registration of job seeking ( September 10, 2015), the Plaintiff entered into an employment contract with the non-party company and served in the non-party company. However, the non-party company notified the Defendant of the conclusion of the employment contract with the Plaintiff on September 11, 2015, and the Plaintiff became unable to work any longer in the non-party company.

On October 30, 2015, after the period of validity of the registration of job seeking expires, the Plaintiff applied for the extension of the period of application for change of place of business to the Defendant on October 30, 2015, which is not attributable to the Plaintiff, but due to the number of non-party companies, which is not attributable to the Plaintiff, and falls under the proviso of Article 25(3) of the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”), and thus, the period should be calculated respectively from the date when the reason for change of place of business ceases to exist. However, the instant application for change of place of business notified that the period of application for change of place of business of the Plaintiff is inappropriate on September 10, 2015.

3. Related statutes;

It is as shown in the attached Form.

4. Whether each of the dispositions of this case is legitimate

A. Determination on this safety defense

1) As to the disposition of denial of employment permit in this case, the defendant did not have a disposition of rejection of employment permit as claimed by the plaintiff, and in accordance with the relevant Acts and subordinate statutes, such as the Foreign Employment Act, the party to the disposition of denial of employment permit or disposition of rejection is not an employer but a foreign worker, and the plaintiff who is not the employer does not have standing to sue, and therefore

2) On September 11, 2015, Article 8(1) of the Foreign Employment Act provides that "If an employer who has filed an application for recruiting nationals pursuant to Article 6(1) fails to employ human resources even after receiving a job placement under paragraph (2) of the same Article, the employer shall file an application for employment permit with the head of an employment security office, as prescribed by Ordinance of the Ministry of Employment and Labor." Paragraph (4) of the same Article provides that "the head of an employment security office shall grant employment permit without delay to an employer who has selected eligible persons recommended pursuant to paragraph (3) and issue an employment permit stating the name, etc. of the selected foreign worker." As seen above, the person in charge of the non-party company found the defendant on September 11, 2015 and applied for employment permit to the employee in charge of the non-party company, but did not electronically input the plaintiff's application for employment permit due to the expiration of the term of validity of the registration of the job seeking, and thus, the application for employment permit against the non-party company was rejected.

In addition, it is reasonable to interpret the disposition against the non-party company which rejected the employment permit of the plaintiff of the non-party company as seen earlier, and in the case of the plaintiff, there is a legal interest to seek the cancellation of the above disposition in accordance with the Foreign Employment Act, which is a basis law, even though the non-party to the above disposition

Therefore, it is reasonable to view this part of the lawsuit by the plaintiff as a legitimate lawsuit that satisfies both the disposition in the appeal litigation and the qualification of the plaintiff, and therefore, the defendant's above main defense cannot be accepted.

B. Judgment on the merits

1) A foreign worker shall depart from the Republic of Korea (the main sentence of Article 25(3) of the Immigration Control Act) if he/she fails to obtain permission to change his/her workplace under Article 21 of the Immigration Control Act within three months (the effective period of registration of job seeking) from the date of application for change of another business or workplace. However, if it is impossible to obtain permission to change his/her workplace due to occupational accidents, diseases, pregnancy, childbirth, etc. or to file an application for change of workplace, a foreign worker may file an application for extension of the period for change of workplace with the defendant accompanied by documents proving the above reasons. In such cases, the period shall be calculated (the proviso of Article 25(3) of the same Act and Article 16(2) of the Enforcement Rule of the same Act, respectively, and the common issue of whether the disposition of refusal to grant permission and the disposition of refusal to grant permission for extension is legitimate, and whether the Plaintiff fails to obtain permission to change his/her workplace (referring to the permission to change the workplace with the foreign company) within September 10, 2010, 2015.

2) Considering the following circumstances that can be acknowledged by comprehensively taking account of the facts acknowledged earlier and the evidence as seen earlier and the written evidence Nos. 5, 7, 8, and 9 and the purport of the entire pleadings, it is difficult to view that the Plaintiff’s failure to obtain permission to change the workplace within the effective period of job seeking registration constitutes an exception to the provisions of the instant proviso.

① First, we examine whether the employer’s negligence or cause attributable to the Plaintiff’s negligence falls under the exception of the proviso of this case.

In the case of 2009Hun-Ma351 decided September 29, 201, the Constitutional Court held that Article 25(3) of the Act provides that the purpose of legislation is to protect domestic workers' employment opportunities and prevent foreign workers who enter the workplace for work purposes from being staying in the country without any intention to work in the workplace or by preventing them from being staying in the country without any intention to work in the workplace. If the period of permission to change the workplace is recognized without any restriction, the basic framework of the Act on the Employment of Foreign Workers, which is premised on short-term stay in principle in order to prevent foreign workers from the mination of the workplace, will collapse, and foreign workers will be difficult to achieve the original purpose of legislation, such as the increase in the rate of severance by continuously moving their workplace and the removal of human resources of the small and medium enterprises.

Therefore, in interpreting the proviso of this case that recognizes an exception to the restriction on the period of permission to change a workplace, it shall be strictly interpreted taking into account the above legislative intent. However, in light of Article 25(1)2 and (4) of the Act, which provides for the reason for the change of workplace of a foreign worker, such as suspension of business, closure of business, cancellation of employment permit, violation of the employer’s working conditions, and unfair treatment, the reason for foreign worker’s liability is mainly not attributable to the employer, and such change of workplace without any limit to the frequency. On the other hand, the proviso of this case is a limitation on the period of application, which is the procedural requirement when the change of workplace occurs. On the other hand, the "occupational accident, disease, pregnancy, childbirth, etc.," which are the reasons for the exception of the proviso of this case, are all the reasons for the worker’s physical or health status, and the content and form of the provision, which provides that the period of application should be calculated again from the date when the above reason ceases to exist, it is impossible to obtain an application to change the period of employment.

Therefore, the circumstance that the employer failed to report within the effective period of the job-seeking registration due to the employer's negligence or failure does not constitute an exception to the provisions of the proviso of this case.

(B) Furthermore, the Plaintiff’s failure to observe the term of validity of the job seeking registration cannot be deemed to have no reason attributable to the Plaintiff. In other words, the “certificate of foreign job seeking registration issued to the Plaintiff” states that the term of validity of the Plaintiff’s job seeking registration is from May 28, 2015 to September 10, 2015. The Plaintiff’s term of validity of the job seeking registration is indicated as follows.

1. He/she shall, within three months (term of validity of the registration of job seeking) from the date of application for change of his/her workplace, obtain the permission for change of workplace from the Ministry of Justice (the Immigration Office) after changing his/her workplace through the employment ledger (the term of validity of the registration of job seeking).2. If he/she starts work after obtaining the permission for change of workplace, and if he/she works without obtaining the permission for change of workplace, he/she may be punished for compulsory departure, fine, etc. pursuant to the Immigration Control Act.3.

An employer may be restricted from employment of foreign workers for three years pursuant to Article 1(1)1, and since he/she is no longer able to work at the relevant workplace he/she returns, he/she must work after obtaining an employment permit.

As above, the Plaintiff stated detailed guidance about the employment permit system in the “certificate of foreigner job seeking registration for change of business place”. However, foreign workers shall undergo education to inform the Human Resources Development Service of the Korea or an institution designated by the Minister of Employment and Labor of matters necessary for domestic employment activities for 16 hours or more after entry into the Republic of Korea pursuant to Article 11 of the Act, Article 18 of the Enforcement Decree of the Act, and Articles 10 and 11 of the Enforcement Rule of the Act. The above education content includes "matters concerning the employment permit system for foreign workers". The Plaintiff received the above education from the Korea Federation of Small and Medium Business, the Commercialization Education Center for Small and Medium Business, from August 6, 2014 to May 8, 2015, and the Plaintiff appears to have been accurately aware of the employment permit system prior to the expiration date due to the change of the employment permit system. In light of the fact that the term of validity of the Plaintiff’s employment permit system was extended, it seems that the Plaintiff could have been aware that the term of validity of the Plaintiff’s employment permit expiration date.

3) If so, all of the non-permissions and non-permissions of the employment permit of this case are legitimate dispositions based on relevant Acts and subordinate statutes. Thus, the plaintiff's assertion seeking the cancellation is without merit.

5. Conclusion

Therefore, the plaintiff's claim is without merit, and all of them are dismissed. It is so decided as per Disposition.

Judges

Judges of the presiding judge;

Judges Yellow-gu

Judges Lee Young-young

Note tin

1) The plaintiff sought the revocation of the above disposition as well as the disposition against the plaintiff in the complaint. However, the plaintiff was present in the complaint and the pleading process.

in light of the overall purport of the head of the office and the proof, the Plaintiff, who was a third party, was seeking the revocation of the employment permit for tax interest corporation.

of this chapter. The judgment shall be made.