(영문) 서울행정법원 2011.5.13. 선고 2010구합39908 판결

The defendant revoked the rejection of the application for extension of employment activity period to the plaintiff and receives the application for extension of employment activity period (the re-employment of the claims seems to be a clerical error in the application for extension of employment activity period).

Reasons

1. Details of the disposition;

A. B Co., Ltd. (hereinafter referred to as “non-party company”) is a company established in Busan Metropolitan City C in order to engage in the business of manufacturing, wholesale, etc. of salt chrops on January 1, 1997, and the Plaintiff is a foreign worker of the nationality of the non-party company from around October 14, 2008 to October 14, 201. B. The non-party company employed the Plaintiff pursuant to Article 8(4) of the Act on the Employment, etc. of Foreign Workers (hereinafter referred to as “Foreign Workers Employment Act”). The termination date of the employment permit period for the Plaintiff is October 15, 2010.

C. As amended on April 10, 2010, the Foreign Employment Act (amended on 2009, 10, and 9) came into force on April 10, 201, in order to re-employed a foreign worker whose employment period of three years has expired to the non-party company on May 17, 2010, the Defendant, in principle, sent to the non-party company a notice that the application for the extension of employment period should be made to the defendant by no later than 45 days prior to the expiration date of employment, and sent the notice to the non-party company on March 31, 2010, June 10 of the same year, and August 10 of the same year by facsimile (f). Around that time, the Defendant sent to the non-party company a notice that the application for the extension of employment period should be made by no later than August 31, 2010.

D. On October 13, 2010, the representative E visited the Defendant’s office and asked the person in charge of the application for the extension of the period of employment activities against the Plaintiff. Accordingly, the person in charge of the Defendant informed the Plaintiff through the computer inquiry that the period of application for the extension of employment activities against the Plaintiff has elapsed through the computer inquiry, and E did not raise any objection, and returned to the Plaintiff without submitting an application for the extension of employment activities against the Plaintiff.

E. On October 14, 2010, pursuant to Article 17(1) of the Foreign Employment Act and Article 14 of the Enforcement Rule of the same Act, the non-party company submitted to the Defendant a report on the employment change, etc. in the Plaintiff’s name that the employment contract between the Plaintiff and the non-party company expired on October 14, 2010, along with a written confirmation of the reasons for the employment change in the name of the non-party company’s name (hereinafter “the report of employment change in this case”).

[Reasons for Recognition: The absence of dispute, Eul evidence Nos. 1 and 4, Eul evidence Nos. 2 and 3, Eul evidence Nos. 5-1 and 5-2, and the purport of the whole pleadings]

2. The plaintiff's assertion

Although the non-party company, which was unable to receive guidance or publicity on the contents of the Foreign Employment Act amended on October 9, 2009, applied for the extension of the employment period before the expiration of the employment period, the defendant's opening

On October 13, 2010, on the ground that the deadline for filing an application for extension of employment activities under the Fixed Foreign Employment Act has expired, the non-party company's rejection of an application for extension of employment activities against the plaintiff on October 13, 2010 (hereinafter referred to as "the rejection disposition of this case") shall be revoked as it is unlawful, and the defendant shall receive an application for

3. Related statutes;

It is as shown in the attached Table related statutes.

4. Determination as to the defendant's defense prior to the merits

A. The defendant's assertion

Since the non-party company did not submit to the defendant an application for extension of the period of job-seeking activities against the plaintiff, the defendant does not have any fact of rendering the disposition of refusal of this case.

B. Determination

The issue of whether an administrative disposition can be viewed as an administrative disposition cannot be determined generally, and in specific cases, an administrative disposition is an enforcement of law with respect to a specific fact conducted by an administrative agency as the public authority, which directly affects the rights and obligations of the people. It shall be individually determined according to which the administrative disposition satisfies the requirements of its establishment or validity. If a certain act of the administrative agency without legal basis is in a form like an administrative disposition which gives objectively disadvantage to the people, and if the other party to the act is aware of it as an administrative disposition, it is necessary to remedy the disadvantage or apprehension of the derived from the act of the administrative agency. In light of the fact that there is no disadvantage or apprehension in the other party due to the act of the administrative agency, it shall be determined by considering not only the degree of administration under the rule of law at that time, the level of the rights and obligations of the citizens, but also the attitude of the administrative agency with respect to the act. The defendant's application for extension of the employment period of the plaintiff's office cannot be seen as having been made orally by visiting the plaintiff's application for employment.

5. Whether the part demanding a judgment on performance of obligations is lawful;

ex officio, among the lawsuits in this case, a lawsuit seeking a performance judgment ordering an administrative agency under the Administrative Litigation Act to take a certain administrative disposition is not allowed as to whether the part seeking the receipt of an application for extension of employment period against the plaintiff among the lawsuits in this case is lawful (see, e.g., Supreme Court Decision 97Nu3200, Sept. 30, 1997). Of the lawsuit in this case, the part concerning a performance lawsuit seeking the receipt of an application for extension of employment period against the plaintiff against the defendant is unlawful

6. Conclusion

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