(영문) 광주지방법원 2019.8.29. 선고 2018구합12695 판결

Preliminary claim: The defendant's rejection disposition against the plaintiff on June 12, 2018 against the qualified person under Article 8 (3) of the Act on the Employment, etc. of Foreign Workers is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a legal entity established with the main purpose of producing, selling, distributing, etc. Magmans.

B. On February 5, 2018, the Plaintiff filed an application with the Defendant for recommendation of eligible persons among the foreign worker employment permits and the list of foreign job seekers pursuant to the Foreign Employment Act, and the Defendant against the Plaintiff on June 12 of the same year.

For the following purposes, the issuance of employment permit for foreign workers was denied (hereinafter referred to as the "disposition of this case").

The scope of the Act on the Employment, etc. of Foreign Workers is applicable to the business or workplace that employs or intends to employ foreign workers and foreign workers. In this case, the term "business or workplace" means a part of the unit or place where the business is conducted. In order to be recognized as an independent place of business, the place of business is divided and separated (if the type of business, personnel affairs, labor, accounting management, etc. are managed separately even if the same place of business is the same, it can be recognized as an independent place of business), the independent business registration number, and the employment insurance management number should exist.In addition, if one place of business is separately issued in the name of family members, it is decided as one place of business.As a result of a comprehensive review of the application for issuance of employment permit for foreign workers and related data submitted by your company, you claim that it is a business or a workplace separate from the current family management corporation (BFD Co., Ltd.) but the person in charge of employment announcement belongs to B, as a result of the first decision that the director of the CFE's representative director has been separated or separated from the family management entrance.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 5 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Judgment on the main claim

A. The plaintiff's assertion

The Plaintiff’s restriction on employment of foreign workers against B farming association corporations, C farming association corporations, and D agricultural corporations is revoked through administrative litigation. Thus, the Plaintiff satisfies the employment requirements for foreign workers under the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”). Nevertheless, since the Defendant refused all of the Plaintiff’s application for employment permit for foreign workers and the application for recommendation of qualified persons among the list of foreign job seekers, the above rejection disposition should be revoked in an unlawful manner.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

A) A corporation incorporated for the primary purpose of the production, sale, and distribution of Masber mushroom. B farming has been subject to the employment permit for foreign workers since October 2007. Around January 14, 2014, a foreign worker was employed with the employment permit for foreign workers on March 7, 2014, but was employed on March 7, 2014, for which six months have passed from the commencement date of the work. G, H, and I were employed for domestic workers on March 17, 2014, as well as for domestic workers G, H, and I on March 17, 2014.

B) The Anti-Corruption and Civil Rights Commission reported that “(i) the representative of B farming was not assigned a foreign worker for one year from March 2014 to March 2015 due to the problem of the layoff for domestic workers, and ② CF was not engaged in farming but was issued a false certificate of scale of farming by a public official in charge of the Jeonnam-gu, Jeonnam-gu, and reported that “the Defendant was granted employment permit for foreign workers by using the above documents” (ii) the part of the report was confirmed as fact, and confirmed on January 11, 2016, the disciplinary affairs of the above public official in charge were transferred to the Ministry of Employment and Labor concerning Jeonnam-do and the cancellation of employment permit for foreign workers.

C) On April 7, 2016, the Defendant, through the Ministry of Employment and Labor, transferred the business of revoking the employment permit for foreign workers, etc., on the following grounds: (a) issued two revocations for the employment permit for foreign workers and one-year restriction on the employment of foreign workers with respect to C Farming and D on August 8, 2016; and (b) issued a three-year restriction on the employment of foreign workers with respect to each of the instant corporations (hereinafter collectively referred to as “previous disposition”).

1. Cinematographic farming and D’s respective disposition of cancellation of employment permit for foreign workers is subject to the employment permit for foreign workers on March 7, 2014 and on March 17, 2014, for which six months have not yet elapsed from the date on which the employment permit for foreign workers was commenced, and as a result, it constitutes a period of employment restriction for three years thereafter (from March 17, 2014 to March 16, 2017) through employment adjustment for domestic workers through employment adjustment, and as a result, it constitutes a period of employment restriction for foreign workers (from March 10, 2014 to March 16, 2017). In order to avoid the said restriction, it constitutes a case where the employment permit for foreign workers was additionally obtained under his/her name by establishing C Farming with documents and obtaining the employment permit for foreign workers on March 10, 2014 to avoid the upper limit of the employment permit for foreign workers. This constitutes a case where the employment permit for foreign workers was obtained in the name of each of this case.

A. 8 Youngdong established a CM and obtained employment permission for foreign workers in its name in order to avoid the employment restrictions on foreign workers. Furthermore, the establishment of D to avoid the upper limit of employment permission for foreign workers and obtained employment permission for foreign workers in its name. As such, each of the instant corporations constitutes a case where the employment permission for foreign workers was revoked by a false or other unlawful means, which is the grounds for employment restrictions on foreign workers. C farming constitutes a case where a foreign worker is employed without the employment permission for foreign workers on April 8, 2016 and provided labor by a foreign worker without the employment permission for foreign workers.

D) Each of the instant corporations filed an administrative litigation seeking the revocation of each of the instant dispositions with the Seoul Administrative Court 2016Guhap7197, and the said court rendered a judgment dismissing the Defendant’s respective claims for CF and D’s farming and D’s respective claims on the following grounds on July 7, 2017. CF and D, Seoul High Court 2017Nu63193, but the Defendant appealed on the appeal as Seoul High Court 2017Nu63193, but the said court rendered a judgment dismissing all of both appeals on April 25, 2018. The Defendant appealed as the Supreme Court 2018Du44890, but the Defendant was dismissed due to trial failure on September 13, 2018 (hereinafter referred to as “previous lawsuit”).

1. The revocation of the employment permit for foreign workers to C Youngdong and D. Each foreign worker is subject to the employment permit for foreign workers on January 14, 2014. The farming conducted the employment permit for foreign workers on March 7, 2014 with the employment permit for foreign workers on January 14, 2014, and the Korean workers E, FF on March 7, 2014, G, H, and I retired from employment through employment adjustment in accordance with their respective managerial needs. As such, Article 20(1)4 of the Foreign Employment Act and Article 25 subparag. 1 of the Enforcement Decree of the same Act of the same Act were generated. In addition, each of the instant corporations did not distinguish between physical and human facilities, and even if the instant corporations did not have any business or place of business independently or separately from B Youngdong, they were the employment permit for foreign workers, which is the independent business and place of business, with the intent to avoid the application of the reasons for the employment restriction for foreign workers. Accordingly, this constitutes an employment permit for foreign workers beyond the employment permit granted by false or other unlawful means.

Since this part of the grounds for disposition cannot be deemed to have been received for the purpose of avoiding the maximum limit, this part of the grounds for disposition is unlawful. However, it is reasonable to deem that the employment permit granted to some foreign workers was obtained by false or other unlawful means in order to avoid the maximum limit. Therefore, this part of the grounds for disposition is legitimate. Although some of the grounds for disposition on small and medium enterprises and their grounds for disposition are illegal, it is sufficient to recognize the legitimacy of the revocation of employment permit for foreign workers only for a legitimate reason, and each of the above dispositions is lawful as it does not violate the principle of proportionality.2. A disposition of employment restriction on foreign workers is legitimate. A disposition of employment restriction on foreign workers against each of the instant corporations. B farming is a disposition of employment restriction on foreign workers on B farming is not subject to the revocation of employment permit granted by the Defendant, and thus, it cannot be deemed that the employment permit was revoked by false or other unlawful means. However, Cdong and D CC farming and D obtained employment permit obtained from the Defendant by fraudulent or other unlawful means, C farming and CK violated the principle of proportionality.

E) On February 5, 2018, the Defendant received the instant application from the Plaintiff and followed the procedure of document inspection, workplace inspection, Plaintiff representative director inspection, etc. in order to verify whether the Plaintiff’s workplace is operated separately from each of the instant corporations. As a result, the Plaintiff’s workplace was not separated from each of the instant corporations.

[Ground of recognition] Facts without dispute, Gap's 3, 4, 9, 11 evidence, Eul's 1 through 6, 9, and the purport of the whole pleadings

2) Whether the instant disposition is lawful

A) Article 3 of the Foreign Employment Act provides that "this Act shall apply to foreign workers and the businesses or places of business that employ or intend to employ foreign workers," and Article 13-4 of the Enforcement Decree of the Foreign Employment Act provides that "requirements prescribed by Presidential Decree, such as the type and scale of business to introduce foreign workers under Article 8 (3) of the Act" shall be met all of the following requirements, and subparagraph 1 provides that "the type of business to introduce foreign workers and the business or places of business that can employ foreign workers shall fall under the category of business or places of business that

In the job manual for employment permit system issued on May 2016 and implemented by the Ministry of Employment and Labor, the employment permit for foreign workers is defined as a part of a unit or an enterprise partitioned in a place where a business such as the main office, factory, or branch is conducted for a place of business on the premise that the number of employees permitted to be employed is calculated as a unit of business. In addition, in order to be recognized as an independent place of business, it should be separated from the type of business, personnel management system, labor union organization scope, collective agreement scope, etc. even if the place is separated or same place of business, and if one place of business is separately issued in the name of a family, etc. to increase the number of foreign workers permitted to be employed, it shall be

B) As seen earlier, C&D did not have a place of business that is substantially independent from B farming, but received a disposition of rejection by the Defendant on the ground that the Defendant was subject to a disposition of revocation of employment permit and restriction on employment of foreign workers on the ground that it was pretended that it was an independent place of business to avoid the application of the grounds for restriction on employment of foreign workers arising from B farming due to the adjustment of domestic workers’ employment. Moreover, in this case, under the premise that the Plaintiff intended to avoid the employment restriction on foreign workers in B/D as well as the instant case, the Defendant deemed that it had filed the instant disposition of rejection by pretending that it was a separate

However, as seen earlier, the employment restriction disposition against foreign workers in the previous disposition was revoked through the previous lawsuit, and comprehensively taking account of the overall purport of the statements and arguments in Gap evidence Nos. 31 through 33 as to B’s previous disposition, B farming can be acknowledged as having not received the employment restriction disposition against foreign workers again after the previous disposition. Thus, unlike the previous disposition, it cannot be deemed that there was a ground for employment restriction against foreign workers or that B farming was in the employment restriction status as to B farming at the time of the instant disposition that was issued on June 12, 2018, and thus, the grounds for the disposition of this case, prior to the above premise, cannot be recognized without the need to further examine.

D. Sub-committee

The instant disposition should be revoked as it is unlawful.

3. Conclusion

The plaintiff's primary claim is reasonable, and it is so decided as per Disposition.