(영문) 의정부지방법원 2011.10.4. 선고 2011구합2267 판결

1. The plaintiff's primary claim is dismissed. 2. The plaintiff's conjunctive claim is dismissed. 3. The costs of lawsuit are assessed against the plaintiff.

Purport of claim

In the first place, the defendant's rejection disposition against the plaintiff on March 4, 2011 is revoked. In the second place, the defendant's rejection disposition against the plaintiff on June 221, 201 against the plaintiff is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff as the representative director of the Plaintiff Company B (hereinafter “B”). Pursuant to Article 8(4) of the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers”), B obtained employment permit for foreign workers of Mongolian nationality from March 11, 2008 to 2011, 3, and 10. The termination date of the employment permit period for the said foreign workers is March 10, 201. (b) The Defendant sent the Plaintiff the mobile phone notification to the effect that the Plaintiff’s extension period of employment permit for the said foreign workers should be from 90 days to 45 days before the expiration date of employment permit (on April 20, 2010, where the employment permit period between the employer and the foreign worker is three months or more prior to the expiration date of employment permit period, and the Plaintiff’s mobile phone renewal notification to the effect that the extension period of employment permit remains from 16 days prior to the expiration date of employment permit period of 20 days to 215 days prior to the expiration date of employment permit.

C. On March 4, 2011, the Plaintiff visited the Defendant’s Guro Employment Center to ask the person in charge of the instant foreign workers whether it is possible to apply for the extension of the period of employment to the foreign workers, and notified the Plaintiff of the fact that the person in charge has expired the period of employment extension.

D. On June 16, 201, on which the period of application for the extension of the employment period for employment was past, the Plaintiff submitted to the Defendant an application for the extension of the employment period for the instant foreign workers. On June 22, 2011, the Defendant rejected the Plaintiff’s application on the ground that the Plaintiff did not comply with the period of submission of the application for the extension of employment period pursuant to Article 18-2 of the Foreign Employment Act and the proviso of Article 14-2

2. The plaintiff's assertion

For the following reasons, the plaintiff asserts that the defendant's refusal disposition to apply for extension of the employment period as of March 4, 201 should be revoked as a preliminary measure, and the defendant's refusal disposition to apply for extension of the employment period as of June 22, 2011 should be revoked.

In light of the fact that applying the Enforcement Rule of the Foreign Employment Act as amended on April 12, 2010, the period of extension of the employment period was changed to 15 days prior to the expiration of the employment period, and the defendant did not properly publicize and notify the above, and that if the defendant's refusal disposition of extension of the employment period is not revoked, it would seriously impede the plaintiff's operation of the company. Thus, the defendant's extension of the employment period of this case, which was made on the ground that the plaintiff did not make an extension of the employment period 15 days prior to the expiration of the employment period, was unlawful by deviation and abuse of discretionary power.

3. Relevant statutes;

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

4. Judgment as to the plaintiff's primary claim

A. The defendant's defense prior to the merits

In relation to the plaintiff's primary claim, since the plaintiff did not submit to the defendant an application for extension of the employment period to the foreign worker of this case on March 4, 2011, the defendant did not have any disposition asserted by the plaintiff, and thus, it shall be dismissed in an unlawful manner.

B. Determination

On March 4, 2011, the plaintiff visited the defendant's old employment center on March 4, 201 and asked verbal questions as to whether it is possible to apply for the extension of the employment period for foreign workers of this case. Thus, the plaintiff cannot be deemed to have applied for the extension of the employment period to the defendant. Thus, the defendant cannot be deemed to have issued a refusal disposition against the plaintiff to apply for the extension of the employment period on March 4, 201. Therefore, the plaintiff's primary claim is unlawful since it is not a disposition as a qualified qualification

5. Judgment on the plaintiff's conjunctive claim

A. Nature of the instant disposition

According to Article 18-2 (1) of the Foreign Workers Employment Act, a foreign worker employed by an employer who has obtained an employment permit under Article 18-2 (1) of the same Act who has requested the re-employment permit to the Minister of Employment and Labor before leaving the Republic of Korea after three years of employment period under Article 18 of the same Act shall be extended only once by up to two years. According to Article 14-2 of the Enforcement Rule of the Foreign Workers Employment Act, in order for an employer to allow the extension of employment period to a foreign worker pursuant to Article 18-2 of the Act, an employer shall submit an application for extension of employment period to the head of an employment-based agency having jurisdiction over the location where the relevant foreign worker is located, along with documents, such as a copy of business registration certificate, foreigner registration certificate, passport copy, standard employment contract copy, etc., and if the employment contract period between the employer and the foreign worker remains for three months or more prior to the expiration of employment period

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 legislative intent of the Foreign Employment Act enacted for the purpose of facilitating the supply and demand of human resources and balanced development of the national economy by systematically introducing and managing foreign workers, and the language and form of Article 18-2(1) of the Foreign Employment Act, which is established for the purpose of facilitating smooth supply and demand of human resources and balanced development of the national economy, as an exception to the provisions of Article 18 of the Foreign Employment Act that limits foreign workers' employment activities for three years in principle, and foreign workers are eligible for lawful employment in the Republic of Korea within the scope of their employment activities. In full view of the fact that the extension of the employment period can be considered as a kind of disposition on the grounds that the Defendant’s exercise of discretion depends on the discretion of the administrative agency, and if there is a deviation or violation of the principle of equality, etc. (see Supreme Court Decision 20020.).

B. Determination as to whether or not the discretionary authority has been abused or abused

Therefore, it is difficult to view the disposition of this case as an internal administrative rule of an administrative agency for the extension of the period of employment permit for foreign workers, which is, where the Foreign Workers Employment Act intends to employ foreign workers, it requires the employment security office to apply for the recruitment of nationals prior to the employment of foreign workers, and limit it to three years from the entry date of the employment activity period of the foreign workers who are permitted to employ, and if it is difficult to maintain a normal employment relationship, it seems that the defendant is given considerable discretion to permit the extension of the period of employment permit and employment for foreign workers. According to Article 14-2 (1) of the Enforcement Rule of the Foreign Workers Employment Act, which provides for the extension period of employment permit for foreign workers, it is difficult to view that the defendant has an external binding force as an internal administrative rule of the administrative agency for the extension of the period of employment permit for foreign workers, but it is difficult to expect the defendant to lawfully obtain the employment permit for the extension of the period of employment permit within the period of 10 days after the issuance date of the employment permit within the period of 20 days after the employment permit.

The purpose of the Enforcement Rule of the Foreign Employment Act stipulating that foreign workers shall file an application for re-employment permission by no later than 15 days prior to the expiration of the employment period is to determine the minimum period necessary to undergo the above series of procedures in consideration of policies. Furthermore, prior to the instant disposition, the Defendant issued a notice to the Plaintiff who employs foreign workers one time and six times a letter, and the Plaintiff submitted an application for extension permission under Article 14-2 of the Enforcement Rule of the Foreign Employment Act only after the expiration of the employment period. The Plaintiff did not comply with the above period. The Plaintiff appears to have caused the cause attributable to the Plaintiff, and the foreign workers whose employment period extension was refused can re-entry after six months after departure from Korea in accordance with Article 18 of the Foreign Employment Act. Thus, the Plaintiff’s claim does not err in the misapprehension of discretionary power as to the application for extension permission of employment period under Article 14-2 of the Enforcement Rule of the Foreign Employment Act.

6. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is unlawful, and the plaintiff's preliminary claim is dismissed as it is without merit. It is so decided as per Disposition.