(영문) 의정부지방법원 2018.8.23.선고 2018구합11024 판결

The primary purport of the claim is to confirm that the defendant's failure to issue a foreign worker's employment permit against the plaintiff on February 1, 2018 is invalid.

Preliminary claim: The defendant's disposition not to issue a foreign worker's employment permit against the plaintiff on February 1, 2018 shall be revoked.

Reasons

1. Details of the disposition;

A. On January 26, 2017, the Administrator of the Daegu Regional Employment and Labor Agency issued a first-year restriction on employment of foreign workers (hereinafter referred to as “first-year restriction on employment”) pursuant to Article 20(1)4 of the Act on the Employment, etc. of Foreign Workers (hereinafter referred to as “Foreign Workers Employment Act”) and Article 25(2) of the Enforcement Decree of the same Act on the grounds that the Plaintiff provided foreign workers with labor outside the business or place of business specified in the employment contract.

B. On November 24, 2017, a public official belonging to the Busan Regional Employment and Labor Agency revealed that the Plaintiff employed a foreign worker on May 9, 2017 at the construction site of the Yasan Underground Road, which is the Plaintiff’s workplace, without obtaining an employment permit on May 9, 2017. Accordingly, the head of the Busan Regional Employment and Labor Agency, following the notification of the submission of opinions to the Plaintiff on December 14, 2017 and the prior notification of the disposition, shall restrict the employment of the foreign worker for two years from the date of notification, as attached to the Plaintiff on January 26, 2018." The approval was completed on the public document of the same item, stating that "the notice of restriction on employment" attached to the above notice of restriction on employment was stated as the name and official seal of the Defendant from December 20 to 21, 2018 (the above notice of restriction on employment).

C. On January 26, 2018, the Plaintiff filed an application with the Defendant for an employment permit and issuance of the employment permit with respect to 20 foreign workers. On January 26, 2018, the Defendant issued a certificate of application for employment permit and a letter of mediation recommended by 25 foreign workers A, etc., to the Plaintiff on the ground that the Plaintiff verified the requirements for issuing the Plaintiff’s employment permit. Accordingly, the Plaintiff entered into a labor contract with 16 foreign workers recommended on January 26, 2018, and notified the Defendant. The Defendant did not issue the employment permit to the Plaintiff on the ground that the secondary employment restriction disposition against the Plaintiff was confirmed in the internal computer system on the same day. On February 1, 2018, the Defendant issued a non-issuance of the employment permit (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 25, 27, 28, 31 through 33, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons, and its defect is obvious, and thus null and void. Even if the instant disposition is not null and void, it should be revoked as it is unlawful as above.

1) As of February 1, 2018, the date of the second employment restriction disposition is that the Plaintiff applied for the issuance of an employment permit to the Defendant on January 26, 2018, even though there was no validity of the employment restriction against the Plaintiff, the Defendant did not issue the employment permit to the Plaintiff on the ground that the second employment restriction disposition was confirmed that the date of the disposition was not yet arrived. Moreover, the Foreign Employment Act does not stipulate that the employment restriction disposition should not be made as a requirement for the issuance of the employment permit. Accordingly, the instant disposition on the ground of the second employment restriction disposition is contrary to the principle of statutory reservation.

2) The Defendant confirmed the requirements for the issuance of the employment permit to the Plaintiff and arranged the employment of foreign workers to the Plaintiff, and applied for the issuance of the employment permit with the Plaintiff’s trust. Thus, the instant disposition goes against the principle of protection of trust.

3) In light of the fact that the civil engineering works mainly conducted by the Plaintiff have high business strength and high working conditions and thus a national is able to enter into an employment contract with the Plaintiff, it is essential to employ foreign workers in order for the Plaintiff to normally proceed with the project. Since the Plaintiff mainly takes charge of the construction of national infrastructure, if the Plaintiff is unable to properly engage in the project due to failure to employ foreign workers, it would result in a violation of the public interest, and the instant disposition causes a significant trouble in the Plaintiff’s business operation and also causes difficulties in the Plaintiff’s employees and their family members’ livelihood. Thus, the instant disposition goes against the principle of proportionality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the assertion of violation of the principle of statutory reservation

A) The purpose of statutory interpretation ought to be to find a concrete propriety within the extent that does not undermine legal stability. Furthermore, as a matter of principle, the statutory interpretation ought to be faithfully interpreted within the ordinary meaning of the language and text used in the law as far as possible, by additionally applying a systematic and logical interpretation method that takes into account the legislative intent and purpose, the history of enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes, etc. (see, e.g., Supreme Court en banc Decision 2011Da83431, Jan. 17, 2013).

B) Article 20(1) of the Foreign Workers Employment Act provides that “the head of an employment security office may restrict the employment of foreign workers for three years from the date when the relevant event occurred.” Meanwhile, Article 8(3) of the Foreign Workers Employment Act provides that the head of an employment security office shall, upon receipt of an application under paragraph (1) (referring to an application for a permit for employment of foreign workers), recommend eligible persons among those registered on the list of foreign workers under Article 7(1).” Paragraph (4) provides that “the head of an employment security office shall, without delay, issue an employment permit stating the name, etc. of the selected foreign workers, etc. of the employment permit to the relevant foreign workers who do not meet the requirements prescribed by Presidential Decree, for employment permit or employment permit issued to the relevant foreign workers by not later than six months prior to the date of employment permit issued pursuant to the Industrial Accident Compensation Insurance Act.” However, Article 13-4 of the Enforcement Decree of the same Act provides that the head of an employment security office may not apply for the employment permit issued to the relevant foreign workers for six months or longer than the following reasons:

① However, the Act on the Employment of Foreign Workers provides that “Any foreign worker who is subject to limitations on employment” under the principle of protection of employment opportunities for domestic workers to resolve shortage of human resources in small and medium enterprises and promote continuous economic growth, while establishing devices to efficiently manage employment for foreign workers and to protect the rights and interests of foreign workers.” As such, each provision should not be interpreted by comprehensively considering the employment opportunities of domestic workers, the development of the domestic market and national economy, the maintenance of national security, and the maintenance of order for foreign workers.” Article 8(3) of the Act and Article 13-4 of the Enforcement Decree of the Act provide that “Any foreign worker who is subject to limitations on employment should be subject to limitations on employment without any restriction on employment” and Article 13-4 of the Act provides that the legislative purport of the Act on the Employment of Foreign Workers is to ensure that any foreign worker who is subject to limitations on employment should not be subject to such limitations on employment, and that the Act provides for the legislative purport of the Act on the Employment of Foreign Workers as well as the Act on the Employment of Foreigners for 200 Years.

Furthermore, with respect to the case of employment restriction against foreign workers, ① Article 20(1) of the Foreign Workers Employment Act provides that the employer may limit the employment of foreign workers for three years from the date of the occurrence of the relevant event. However, the employer was found to have employed foreign workers without the employment restriction period based on the employment restriction disposition, but such interpretation goes against the legislative intent of the Foreign Workers Employment Act, and also goes against the principle of legality of the employment restriction. ② If the employer has employed foreign workers without the employment restriction period against the previous employment restriction disposition within the employment restriction period, it is necessary to limit the employment restriction period from the date of the previous employment restriction to a new employment restriction period, and thus, the employer is not subject to the new employment restriction disposition within the period of 20 years after the expiration of the employment restriction period. The purport of the above employment restriction disposition is to ensure that the new employment restriction disposition is not made within the period of 10 years after the expiration of the employment restriction period, and thus, it can be seen that the new employment restriction disposition is not made within the new employment restriction period after the expiration of the employment restriction period.

C) We examine this case in light of the above legal interpretation.

First of all, with respect to the date of the secondary employment restriction disposition, in a case where an administrative disposition generally satisfies the internal requirements for the establishment of the content and form of the subject, and the external requirements for the establishment of the externally established administrative disposition, such as an indication of the outside, is deemed to exist. The external establishment of an administrative disposition has the meaning of determining the point at which an administrative agency becomes bound by a detention for which it is impossible to freely revoke the administrative agency, and the external establishment of a certain disposition ought to be determined based on whether an administrative agency’s external intent was indicated in an official manner (see, e.g., Supreme Court Decision 2016Du35120, Jul. 11,

The above facts are as follows. ① The notice of restriction on employment was completed on January 26, 2018 with the approval of 20 years from the date of notice, and the defendant was also aware of the same date. ② The above notice of restriction on employment was issued on February 1, 2018 to the bottom of the notice of restriction on employment of foreign workers. The above notice of restriction on employment was merely attached to the above notice of restriction on employment of foreign workers. The plaintiff's 20th day of this case's 20th day of this case's 20th day of this case's 10th day of this case's 20th day of this case's 20th day of this case's 20th day of this case's 20th day of this case's 10th day of this case's 20th day of this case's 20th day of this day's 18th day of this case's 20th day of this day's 2018th day of this day of this day.

2) In general, in relation to the assertion of violation of the principle of protection of trust in administrative legal relations, in order to apply the principle of protection of trust to the acts of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency's trust in the name of the opinion that is justifiable should not be attributable to the individual; third, the individual should have trusted that opinion; third, the administrative agency should have conducted any act that is contrary to the above opinion list; fourth, the administrative agency's disposition that is contrary to the above opinion list should cause an infringement on the individual's trust in the name of the opinion list. If any administrative disposition satisfies these requirements, it is unlawful (see, e.g., Supreme Court Decision 2006Du10931, Jan. 17, 2007).

With respect to this case, on January 26, 2018, the Defendant received an application from the Plaintiff for employment permit and issuance of employment permit for foreign workers, and confirmed the requirements for issuance of the Plaintiff’s employment permit on the same day and issued the Plaintiff a certificate of application for employment permit and a certificate of referral for foreign workers, as seen earlier.

However, according to Gap evidence No. 31, the defendant's instruction on the procedure for issuing the above employment permit"(3) of 'the defendant's instruction on the procedure for issuing the above employment permit' is as follows: (1) the defendant recommended the eligible person among those registered on the employment permit list of foreign job seekers; (2) the employer selects workers among the eligible persons and concludes a employment contract; and (3) the defendant confirms the requirements for issuing the employment permit again, and issued the employment permit. Accordingly, the defendant's confirmation of the requirements for issuing the employment permit and subsequent recommendation for foreign workers are expected to be lawful, and such fact was notified to the plaintiff. Thus, it is difficult to view that the defendant's above issuance of the employment permit and recommendation for foreign workers are a public opinion statement that only if they concluded the employment contract with the recommended foreign workers regardless of whether they meet the requirements for issuing the employment permit. Furthermore, even if the plaintiff concluded the employment contract with the above foreigner's above issuance of the employment permit and the reliance on the recommendation of the foreign workers, the plaintiff's reliance in the above part of the employment permit cannot be seen as the above violation of the law.

3) As to the assertion of violation of the principle of proportionality, Article 8(3) and (4) of the Foreign Workers Employment Act provides that "the head of an employment security office shall, upon receiving an application for a foreign worker's employment permit, recommend an eligible person from among those registered in the list of foreign job seekers, such as the type and scale of foreign workers, and the employer who has selected the recommended person shall, without delay, grant the employment permit and issue the employment permit stating the name, etc. of the selected foreign worker." In light of the language and text, form, and type of the Foreign Employment Act and the employment permit for foreign workers are one of the general rights derived from the freedom of occupation or the right to freedom of action derived from the right to pursuit of happiness, which generally prohibit the employment of foreign workers in the contract area, and if the applicant satisfies certain requirements prescribed in the law and regulations, it is reasonable to deem that the issuance of the employment permit and the employment permit for foreign workers is a binding act in which the head of the employment security office bears the legal obligation.

Therefore, this part of the Plaintiff’s assertion on the premise that the issuance of employment permit is discretionary act is without merit.

3. Conclusion

Therefore, all of the plaintiff's main and ancillary claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges

The presiding judge, deputy judge;

Judges fixed-type

Judge Sung-sung

Note tin

1) In the case of an employment restriction disposition after November 1, 2017, the Ministry of Employment and Labor set the day following the date of the disposition as the time for clarifying the period of the employment restriction (B).

No. 5, therefore, this is distinguished from the date of the first employment restriction disposition, such as the date of the disposition.