2019Guhap6188 Denial of permission for extension of the period of employment with the expiration of the period of employment

1. A;

2. B

[Defendant-Appellant] Plaintiff 1 and 2 others

The Administrator of the Gyeonggi Local Labor Agency;

September 26, 2019

October 31, 2019

1. All of the plaintiffs' claims are dismissed.

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

In May 3, 2019, each of the "dispositions not to extend the employment period for the defendant against C on May 3, 2019" shall be revoked.

1. Details of the disposition;

A. The Plaintiffs entered the Republic of Korea on May 18, 2016, respectively, as Sri Lankan nationality, and were employed by C Co., Ltd. (hereinafter “instant company”) from the same date.

C. On March 8, 2016, pursuant to Article 8 of the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”), the instant company was issued a written employment permit for 36 months from the Defendant to the Plaintiffs.

C. On April 30, 2019, before the Plaintiffs’ employment period expires ( May 17, 2019), the instant company applied for an extension of the Plaintiffs’ employment period to re-employed the Plaintiffs to the Defendant (hereinafter “each extension application of this case”). On May 3, 2019, the Defendant rendered a disposition rejecting each extension application of the instant case against the instant company on the ground that “the delayed payment of wages (unsettled and indictment) of national workers D is confirmed, and thus the extension of employment period is denied” (hereinafter “each of the instant dispositions”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether to benefit from a lawsuit;

The right to apply for extension of the period of employment for foreign workers is the company of this case, which is the employer, and the defendant's each disposition of this case was conducted in the company of this case, and the plaintiffs are merely third parties, and we examine ex officio whether there is a legal interest

Even if a third party is not the direct counter-party to an administrative disposition, if the legal interests protected by the administrative disposition have been infringed, the party shall be entitled to obtain the decision of the propriety thereof by filing an administrative litigation seeking the revocation of the disposition or the confirmation of invalidity, and the term "legal interests" refers to cases where there are individual, direct, and specific interests protected by the relevant laws and regulations and regulations (see, e.g., Supreme Court Decision 2007Du23811, Mar. 27, 2008).

In light of the procedures for applying for the extension of the period of employment under Article 14-2 of the Enforcement Rule of the Foreign Employment Act, even though the applicant is stipulated as an employer, the applicant shall submit a copy of the foreigner registration certificate, passport copy, etc. in order for the employer to apply for it, including the matters concerning foreign workers such as the signature or seal of the foreign worker as essential elements of the application, and thus the procedural participation of the foreign worker is required. The purpose of the Foreign Employment Act is to systematically introduce and manage the foreign workers, thereby ensuring the smooth supply and demand of human resources and balanced development of the national economy, but it is reasonable to view that the benefits infringed on by the relevant foreign worker by the disposition rejecting the application for the extension of the period of employment is a legal interest protected by the Foreign Employment Act.

Therefore, although the plaintiffs are not directly the other party to each of the dispositions of this case, the interests of lawsuits that can dispute each of the dispositions of this case should be recognized.

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

A. The plaintiffs' assertion

Each of the dispositions of this case makes it difficult for the plaintiffs and their families to maintain their livelihood, there are no causes attributable to the plaintiffs with respect to each of the dispositions of this case, and there are only damages to the plaintiffs due to disputes between the company and D of this case, the purpose of the Foreign Employment Act is to prevent the welfare of foreign workers and the delayed payment of wages, and there was no payment of wages to foreign workers. In light of the above, each of the dispositions of this case is unlawful as it is against the law.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As seen earlier, the legislative intent of the Foreign Employment Act is to facilitate the smooth supply and demand of human resources and the balanced development of 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 is the form of "the period of employment may be extended". In principle, the above provision is an exception to the provisions of Article 18 of the Foreign Employment Act that limits foreign workers' employment activities for three years, which is a special provision, and the foreign worker is eligible to legally find employment in the Republic of Korea within the scope of their employment activities. As such, the extension of the period of employment can be seen as a kind of permanent disposition, whether to permit the extension of the period of employment activities for foreign workers depends on the discretion of the administrative agency. If the defendant misleads the fact forming the basis of the disposition in exercising such discretion or violates the principle of proportionality, it shall be deemed unlawful as a deviation or abuse of discretionary power.

2) In light of the following circumstances, it is difficult to view each of the dispositions of this case as a deviation from and abuse of discretionary power even considering the various circumstances asserted by the plaintiffs, each of the dispositions of this case is lawful, and the plaintiffs' assertion is without merit.

Article 8(1) and 6 of the Foreign Workers Employment Act provides that the Act shall make efforts to employ nationals first as a requirement for the employment permit for foreign workers (Article 8(1) of the Foreign Workers Employment Act); the introduction of foreign workers; the type of business or place of business eligible for the employment permit for foreign workers (Article 8(3) of the same Act; Article 13-4 subparag. 1 of the Enforcement Decree of the same Act); and that a foreign worker does not leave his/her job by employment adjustment during a certain period prior to obtaining the employment permit for foreign workers (Article 8(3) of the same Act; Article 13-4 subparag. 3 of the Enforcement Decree of the same Act). In full view of the above provisions, the employment permit system for foreign workers provides that if the above foreign worker is not issued with a certain size of business without the full self-regulation of the market, it is reasonable to ensure that the above foreign worker is not issued with the employment permit, and that the above foreign worker is not issued with the purpose of legislation, and that it is also possible to prevent the above domestic workers from being liquidated.

Meanwhile, according to Article 18 of the Foreign Employment Act, a foreign worker may engage in employment activities within three years from the date of entry into the Republic of Korea. According to Article 18-2(1)1 of the same Act, a "foreign worker employed by an employer who has obtained an employment permit under Article 8(4) and has requested the re-employment permit to the Minister of Employment and Labor before departure after the expiration of three years of employment under Article 18 may be extended only once within two years, notwithstanding the restriction on the period of employment activity under Article 18. Even in cases of granting an extension of the period of employment of a foreign worker, considering the same effect as the employment permit of a foreign worker, it is reasonable to view that the determination of whether to grant the re-employment permit should be based on the same criteria

According to the Defendant’s confirmation letter of overdue wage, etc., the instant company delayed payment of KRW 30,718,730 in total, and KRW 27,532,383 in total, with respect to the overdue wage, etc. of the instant company from November 1, 2004 to March 25, 2018, to D who worked for the instant company from April 1, 2008 to March 25, 2018, and the Defendant issued the instant company’s payment of overdue wage, etc. under the Foreign Employment Management System (EPS), with respect to the overdue wage, etc. of the instant company as to D, etc., “the date of confirmation of overdue payment: January 24, 2019; whether liquidation was completed; whether the instant company was liquidated or terminated; and until now the instant company paid the overdue wage, etc. to D, etc.

There is no circumstance to see that there is no such circumstance.

Foreign workers whose extension of the period of employment is refused are allowed to re-entry after six months after departure pursuant to Article 18-3 of the Foreign Employment Act, so it is possible to enter the Republic of Korea after the expiration of the said period.

4. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.

The presiding judge, senior judge, and senior

Judges Lee Jae-soo

Judges public-private partnership

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.