2011Revocation of refusal to receive employment re-employment of materials whose employment expires, 9608

A

Head of the Ministry of Employment and Labor

January 19, 2012

February 16, 2012

1. On June 16, 201, the Defendant’s refusal to receive an application for extension of employment period against the Plaintiff on June 16, 2011 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, as an employee of Sri Lankan nationality, worked for B Company (representative C) from July 1, 2008 to June 30, 201, and the expiration date of the employment period under Article 18 of the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”) is June 30, 201. (b) On June 16, 201, C, the Plaintiff’s employer, filed an application for an extension of the employment period for the Plaintiff’s work with the Defendant for an extension of the employment period on behalf of the Defendant on June 16, 2011, but the Defendant rejected such application (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and the purport of the whole pleadings

A. The plaintiff's assertion

1) The Plaintiff was aware that the application for extension was made by the expiration date of the employment period, and the Defendant did not inform the Plaintiff or the Plaintiff’s employer of the relevant statutes, and thus, the instant disposition was unlawful.

2) The instant disposition is unlawful since it deviates from and abused discretionary power.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) According to Article 18(1) of the Foreign Employment Act as to the Plaintiff’s first assertion, a foreign worker may engage in employment activities within three years from entry into the Republic of Korea, and pursuant to Article 18-2(1) and (2) of the same Act and Article 14-2(1) of the Enforcement Rule of the same Act (wholly amended by Ordinance of the Ministry of Employment and Labor No. 29, Jul. 5, 201; hereinafter the same), a foreign worker may be extended the employment period by up to two years only once. In such cases, an employer shall submit an application for extension to the head of the employment security office 45 days prior to the expiration of the employment period of a foreign worker, but if the employment contract period between the employer and the foreign worker remains for three months or more prior to the expiration of the employment period, the employer

According to the statement in Eul evidence No. 3, it is recognized that the defendant notified the company B of the deadline for submission of the above application on March 23, 2011. Nevertheless, as seen earlier, C, an employer of the plaintiff, submitted an application for extension of the plaintiff's employment period on June 15, 201, before 15 days prior to the expiration date of the plaintiff's employment period, without submitting an application for extension of the plaintiff's employment period, which is in violation of the deadline for submission of the above application. Accordingly, the plaintiff's first argument is without merit

2) As to the plaintiff's second argument, 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 on the basis of the pertinent disposition (see Supreme Court Decision 94Nu12302, Dec. 12, 1995). The Foreign Employment Act aims to ensure the smooth development of human resources supply and demand and the national economy by systematically introducing and managing foreign workers, and the language and text of Article 18-2 (1) of the Foreign Employment Act can be extended "the period of employment". The above provision is a kind of special case as an exception to the provisions of Article 18 of the Foreign Employment Act that limits foreign workers' employment activities for three years, and a foreign worker is eligible to legally be employed domestically within the scope of employment activities, so the extension of the period of employment activities can be viewed as a kind of disposition on the basis of authority to permit the extension of employment activities, and if there is a violation of the principle of proportionality or discretion of the administrative agency or an abuse of discretionary authority.

Article 14-2(1) of the Enforcement Rule of the Foreign Employment Act, which provides for the deadline for filing an application for extension of the period of employment of foreign workers, is difficult to regard it as a mandatory provision, and as can be known by the statement in the evidence No. 4, the Plaintiff was expected to extend the period of employment activities around June 201 and concluded an employment contract with C during the period of employment from July 1, 2011 to June 30, 2012. The submission of the written application for extension to C was not extended beyond the deadline for submission, and even if the Plaintiff did not submit the written application to the Plaintiff, the submission of the written application for extension to the Plaintiff would be unreasonable, and it would be unreasonable to entirely take the disadvantage to the Plaintiff. In full view of the above, it is reasonable to deem that the disposition of this case was in violation of the principle of proportionality and abuse of discretionary authority unless six months have passed since the foreign worker whose period of employment was refused to be extended, departing from the Republic of Korea pursuant to Article 18(2) of the Foreign Employment Act.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

The chief judge, chief judge and associate judge

Judges Lee Young-Nam

Judges Cho Jong-tae

A person shall be appointed.

A person shall be appointed.