(영문) 서울행정법원 2011.5.13. 선고 2010구합43396 판결

The defendant's refusal to receive an application for extension of employment period to the plaintiff is revoked (the "application for re-employment" among the claims seems to be a clerical error in the "application for extension of employment period").

Reasons

1. Details of the disposition;

A. B is a person who establishes and operates "D" in Gwangju City in order to operate rubber and plastic manufacturing business on June 25, 1994, and the Plaintiff is a foreign worker of the nationality of Sri Lanka who has worked in D from April 10, 2009.

B. B hired the Plaintiff pursuant to Article 8(4) of the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”), and the expiration date of the employment permit period for the Plaintiff is November 26, 2010.

C. B visited the Defendant’s office on November 2010, and asked the person in charge of the Defendant’s office about whether it is possible to apply for the extension of the period of employment to the Plaintiff. Accordingly, the Defendant’s person in charge of the employment did not fall under a workplace that is capable of employing foreign workers under Article 13-4 subparag. 1 of the Enforcement Decree of the Foreign Employment Act, and B returned to B without submitting an application for the extension of the period of employment to the Plaintiff.

D. Pursuant to Article 17(1) of the Foreign Employment Act and Article 14 of the Enforcement Rule of the same Act and Article 14 of the same Act, B submitted to the Defendant a “written confirmation of the reason for the change of business place, etc. that the employment contract between the Plaintiff and the Defendant has expired on November 25, 2010,” and “the reason why the Plaintiff retired from D on November 25, 2010” was not met due to the lack of a domestic employee employed in D’s workplace requirements for the employment of a foreign employee under Article 13-4 subparag. 1 of the Enforcement Decree of the Foreign Employment Act.

[Reasons for Recognition: There is no dispute, as described in the evidence Nos. 1 and 2, and as a whole, the purport of the pleading]

2. The plaintiff's assertion

The defendant's refusal to receive the plaintiff's employment activities (hereinafter referred to as "the refusal disposition of this case") should be revoked as it is illegal even though the employer Eul applied for extension of employment activities for the plaintiff several times within the deadline for filing an application for extension of employment activities.

3. Related statutes;

It is as shown in the attached Table related statutes.

4. Determination on the legitimacy of the instant lawsuit

A. In relation to the issue of whether an ex officio rejection disposition of this case was taken, the issue of whether an administrative agency's act is deemed an administrative disposition cannot be determined abstractly and generally. In specific cases, an administrative disposition is a law enforcement with regard to specific facts conducted by an administrative agency as a public authority and directly affects the rights and obligations of the people. The administrative disposition is determined individually on the basis of whether the administrative disposition satisfies the requirements of establishment or validity in its subject, content, procedure, and form. A certain act of an administrative agency without legal basis has the same external form as an administrative disposition that gives objectively disadvantage to the people. If the counterpart to the act is recognized as an administrative disposition, it is necessary to take measures to eliminate disadvantages or apprehensions from the disadvantage of the people derived from the act of the administrative agency, then whether there is disadvantage or apprehension about the other party's act should be determined by considering not only the degree of legal administration at the time, the level of awareness of rights of the people, etc. (see, e.g., Supreme Court Decision 93Nu12619, Dec. 10, 1993).

B. On November 2010, in light of the following circumstances revealed in the instant case: (a) the employer-employee B visited the Defendant’s office to ask the Plaintiff about whether the application for extension of employment period is possible; (b) it cannot be deemed as an application for extension of employment period against the Plaintiff; (c) although the Defendant-employee informed B of the fact that D was unable to file an application for extension of employment period with the Plaintiff due to the lack of domestic workers, it is difficult to deem that B was aware of the receipt of the application for extension of employment period affecting the rights and obligations; (d) the Plaintiff did not raise any objection; and (e) B did not submit the application for extension of employment period to the Plaintiff; and (e) the Defendant submitted the “written confirmation on the change of employment period” to the Defendant on March 31, 201; and (e) there is no other evidence to acknowledge that the instant disposition was subject to administrative litigation against B on November 2010.

5. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.