2015Gudan59306 Revocation of business suspension

Global Work site Co., Ltd.

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

September 12, 2016

November 14, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of business suspension against the plaintiff on August 25, 2015 shall be revoked for one month.

1. Details of the disposition;

A. The Plaintiff is a corporation that concludes an employment agency contract with job seekers who wish to be employed overseas, and operates an overseas employment agency business with job offerers overseas including Canada and Australia to arrange that the employment contract should be concluded.

B. A, B, and C (hereinafter referred to as “A, etc.”) who entered into a contract for vicarious employment with the Plaintiff, filed a civil petition on or around May 2015 or June 2015 on the ground that the Defendant violated the Employment Security Act, since the Plaintiff received the money from A, etc. and did not comply with the demand for refund.

C. On August 25, 2015, the Defendant rendered a disposition suspending the business for one month on the ground that the Plaintiff constitutes a case where the Plaintiff received the introduction fees, etc. before entering into an employment contract in violation of Article 25 of the Enforcement Decree of the Employment Security Act (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Article 25 Subparag. 6 of the Enforcement Decree of the Employment Security Act provides that fees under Article 19(3) of the Employment Security Act shall be paid after a job seeker’s employment contract is concluded, limiting the timing of receiving fees that are not mentioned in the mother law. This is an unconstitutional provision beyond the scope of delegation by the mother law.

2) The Plaintiff did not receive a referral fee pursuant to Article 19(3) of the Employment Security Act and the Public Notice of Overseas Fuel Fee, etc. (Notice No. 2010-4, Jan. 13, 2010; hereinafter referred to as “Public Notice of Ministry of Labor”) where the Plaintiff entered into an employment visa agency contract with A, etc., and received a binding agency fee from A, etc. to act for the non-self-denunciation.

3) In light of the fact that the Plaintiff had a high possibility of closure of business and the Plaintiff did not have any control over the violation of the Employment Security Act, the instant disposition was deviates from and abused discretion.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Whether Article 25 subparagraph 6 of the Enforcement Decree of the Employment Security Act is unconstitutional

1) Article 19(6) of the Employment Security Act (amended by Act No. 13049, Jan. 20, 2015; hereinafter “Employment Security Act”) delegates to the Presidential Decree matters to be observed by a person who conducts fee-charging job placement services and his/her employees. Accordingly, Article 25 of the Enforcement Decree of the Employment Security Act lists the matters to be observed. Accordingly, Article 25 of the Enforcement Decree of the Employment Security Act has a provision on mother law (the Plaintiff’s assertion that Article 25 of the Enforcement Decree of the Employment Security Act is unconstitutional because there is no ground for mother law).

2) However, it is problematic whether Article 19(6) of the Employment Security Act, which is the ground for delegation of Article 19(6) of the Enforcement Decree of the Employment Security Act, violates the principle of prohibition of comprehensive delegation legislation.

Article 75 of the Constitution of the Republic of Korea provides that "the President may issue Presidential Decrees with regard to the matters to be specifically delegated by the Act and those necessary for the enforcement of the Act." The legislative basis of delegation legislation is set by the Presidential Decree, while limited to the matters to be delegated by the Act. However, the "matters to be delegated with the scope specifically determined by the Act," which is the limit to the approval of the delegation legislation by the Constitution, shall be clearly and clearly defined by the Presidential Decree, so that any person can predict the outline of the matters to be prescribed by the Presidential Decree in the Act itself. The existence of such predictability shall not be determined by only one specific provision, but shall be determined systematically and systematically, and it shall be examined specifically and individually in accordance with the nature of each applicable Act.The concreteness and clarity demand of the delegated legislation vary depending on the type and nature of the object to be regulated, but in particular, it is not necessary to limit the scope of the delegation of the Act to the extent that it directly infringes on the basic rights of the people, such as punishment regulations or tax regulations or its nature.

3) In light of the aforementioned legal principles, health class, economic situation, and labor environment are constantly changing, and in order to resolve the imbalance of the supply and demand of labor force in the current situation where employment is unstable, and unemployment increases, and to promote employment stability of workers (job seekers) by shortening the unemployment period, the role of various employment services is emphasized. As such, the Employment Security Act is not only professional and technical than other Acts, but also requires prompt and flexible legislative response due to changes in reality, such as the form of changes in existing employment services, such as the appearance of new employment services or concurrent operation of job placement services and job placement services. Therefore, the detailed and technical discipline of matters to be observed by a fee-charging job placement service provider, rather than having been entrusted to the National Assembly, setting the overall standard and outline of legal standards, and detailed and detailed matters

For flexible or technical response under this, there is a need to delegate subordinate statutes to the administration with professional and technical capabilities so that they can respond appropriately in a timely manner according to changes in the situation.

In addition, the purpose of the Employment Security Act and the discipline required for private employment service providers;

In other words, according to the organic and systematic examination of the prohibition of rejection of repair without justifiable grounds (Article 9), specification of working conditions (Article 10), suitable job placement (Article 11), and prohibition of false job offer advertisements (Article 34), contents to be determined by the Presidential Decree pursuant to Article 19(6) of the Employment Security Act can be sufficiently predicted that the specific matters to be observed by fee-charging job placement services and their employees for the purpose of providing workers with employment opportunities and stabilizing their occupation, or general standards for matters not deviating from the scope (see Constitutional Court Order 2012Hun-Ba54, Jul. 25, 2013).

4) Therefore, since Article 19(6) of the Employment Security Act recognizes both the necessity and predictability of delegation, it does not violate the principle of prohibition of comprehensive delegation legislation. Accordingly, the Plaintiff’s assertion on this is without merit.

D. Whether grounds for disposition exist

1) In light of the following circumstances acknowledged by the purport of Gap's evidence Nos. 4, 5 (including various numbers), Eul's evidence Nos. 4 through 7, 12, 14, and 15 and the whole arguments, it is reasonable to deem that the plaintiff received the referral fee prior to the conclusion of the labor contract of Gap and C. Thus, the plaintiff's assertion on this issue is without merit.

① It is reasonable to deem that the Plaintiff entered into an overseas job placement contract with A, and that A was paid at least KRW 6,060,000 for the job placement fee before entering into the employment contract with a foreign company.

On July 18, 2012, the Plaintiff and A concluded a contract with the Plaintiff to act as an agent in order to obtain employment of the local company in Australia and the acquisition of the visa in Australia, and the contract period was determined from the time of the payment of the contract amount to the time of the completion of the contract contract with the local company in Australia. The contract is effective from the time when the Plaintiff receives the down payment from A.

The Plaintiff and the Republic of Korea: (a) paid to the Plaintiff a total of KRW 25,000 (AUD); (b) around the first-lane contract, the Plaintiff and the Plaintiff agreed to pay USD 10,000 to the Plaintiff in installments, and USD 15,000 at the time of the second-lane 457 visa application, respectively; and (c) the Plaintiff can be deemed to have concluded a structural contract under which the Plaintiff received all expenses from A prior to the expiration of the contract period (the foregoing paragraph (1) is not the termination date of the contract at the time of the application for 457 visa).

In light of the contract provisions under which the Plaintiff’s total costs incurred from A are 25,00 Australia, and the necessary expenses related to employment and acquisition of visa (such as document issuance expenses, immigration receipt expenses, physical examination expenses, settlement expenses, recognition expenses, family medical insurance expenses, aviation fees, etc.) are separately borne by A, and the contract provisions under which the remainder of the expenses, excluding “1,90,000 won” among the expenses incurred for the Plaintiff’s cause attributable to the Plaintiff under Article 8(1), are refunded, can be seen that USD 25,00 includes the amount excluded from the necessary expenses.

A paid 6,060,000 won to the Plaintiff on August 16, 2012 under the said contract as down payment.

A paid 5,990,000 won to the Plaintiff on August 29, 2012, upon the Plaintiff’s request that an additional amount is needed to receive from a driving school for the acquisition of qualifications for the other Australia. The above KRW 6,060,000 is highly likely to be money not directly related to the receipt of the other driving school.

OA did not enter into an employment contract with the local company of Australia by the plaintiff's arrangement until now ( even if it is based on the contents stated by the plaintiff at the time of the investigation by the defendant, the date on which the plaintiff asserts that the employment of A became final and conclusive through telephone communications is also the first policeman of September 2012, which was after receiving the above 6,060,000 won).

② It is reasonable to deem that the Plaintiff entered into an overseas job placement contract with C, and that C received a minimum of KRW 19,540,000 as a job placement fee prior to entering into an employment contract with a foreign company.

On April 17, 2014, the Plaintiff and C concluded a contract under which the Plaintiff would act as an agent for the local company of Australia and the acquisition of the family employment visa for Australia, and the contract period was determined from the completion of the contract to the completion of the non-self-acquisition after the employment of the local company of Australia was finalized.

The Plaintiff and C agreed that USD 20,000 shall be paid to the Plaintiff in total, and USD 10,000 shall be paid in installments at the time of the first-lane contract, USD 5,00 at the time of approval of the second-lane 457 visa, USD 10,000 shall be paid in installments from the third-lane local company of Australia, and USD 10,000 shall be paid in installments from the third-lane local company of Australia.

C. In light of the contract provisions under which the Plaintiff’s total expenses paid from C are all the above USD 35,00 Australia, and the necessary expenses related to employment and acquisition of visa (such as document issuance expenses, immigration receipt expenses, physical examination expenses, settlement expenses, recognition expenses, family medical insurance expenses, aviation fees, etc.) are separately borne by A, and the contract provisions under which the Plaintiff’s liability is suspended under Article 7(1) excluding “1.9 million won (domestic postal expenses)” is refunded, the aforementioned USD 35,000 includes the amount excluded from necessary expenses, and there is a high possibility that the Plaintiff’s overseas job placement fees are included in USD 35,000. On April 21, 2014, following the conclusion of the contract pursuant to the above contract, C paid the Plaintiff KRW 19,540,000 under the name of contract deposit amount corresponding to USD 20,000 on April 21, 2014, considering that the above amount accounts for the total expenses, the whole amount of KRW 19,5000,00.

① Until now, C was unable to conclude an employment contract with the local company of Australia by the Plaintiff’s arrangement (at the time of the investigation by the Defendant, the Plaintiff also recognized that C had not concluded an employment contract between C and the local company of Australia, although there was a fact that the employment was confirmed by the local company of Australia).

2) However, the following circumstances acknowledged by the purport of Gap evidence No. 3 (including paper numbers) and the entire arguments, namely, ① the date when the contract between the plaintiff and Eul entered into between the plaintiff and the plaintiff to act as an agent for the purpose of obtaining employment and employment of a local enterprise in Canada. On February 18, 2014, the date when Eul first paid money to the plaintiff according to the above contract was 4 months after the date when Eul actually paid the money to the plaintiff under the above contract, and there is considerable room for paying money after Eul actually worked in a Canadian local beauty art enterprise (the defendant does not clearly indicate the time when the plaintiff worked in a Canadian local beauty art enterprise). ② The defendant was employed in a local beauty industry enterprise in Canada in accordance with the plaintiff's contract, and the defendant did not receive money from the plaintiff in consideration of the lack of evidence that the plaintiff did not actually receive money from the plaintiff during the contract and the part of the defendant did not receive money from the plaintiff (it does not appear that the defendant did not receive money from the plaintiff in light of the evidence that the plaintiff did not actually received money from the plaintiff during the contract.

E. As seen earlier, the grounds for disposition A and C of the instant disposition are acknowledged, but the grounds for disposition as to the instant disposition are not recognized, and the absence of some of the grounds for disposition at the time of the instant disposition is confirmed.

However, in light of the overall circumstances, such as the purport of Article 19(3) of the Employment Security Act, Article 25 subparag. 6 of the Enforcement Decree of the Employment Security Act, and only the grounds for the above-mentioned disposition are based on the above-mentioned disposition, and the fact that the disposition of this case’s business suspension for one month conforms to the administrative disposition criteria prescribed by the relevant Acts and subordinate statutes, and that there is a need to strictly enforce the relevant Acts and subordinate statutes in order to prevent any frequent appearance of other similar cases and maintain equity, even if considering the circumstances alleged by the Plaintiff, the disposition of this case is much more than the public interest purpose to achieve the disadvantage that the Plaintiff would incur, and thus, it cannot be deemed that the disposition of this case deviates from or abused the discretionary

3. Conclusion

The plaintiff's claim is dismissed for lack of reason.

Judges Song Jong-hwan