Defendant

Prosecutor

Of charge, No. 500, 200

Law Firm Ulil (Attorney Kim Young-chul, Counsel for defendant-appellee)

Seoul Central District Court Decision 2017Ra1213 Decided September 20, 2017

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In light of the evidence, although the court below found that the defendant employed a foreign worker with the knowledge that the foreign worker did not have a legitimate status of stay, it erred by misapprehending the defendant's awareness of whether the foreign worker has a status of stay, and by understanding the concept of employment under Articles 18 (3) and 94 subparagraph 9 of the Immigration Control Act, and thereby acquitted the defendant. The court below erred by misapprehending the facts or by misapprehending the legal principles.

2. Determination

Examining the reasoning of the lower court’s reasoning closely and closely with the evidence, it is acceptable to accept the lower court’s fact-finding and determination, and considering the following circumstances that can be recognized by the evidence duly adopted and investigated by the lower court, the lower court did not err by misapprehending the legal principles as alleged by the prosecutor, and thus, the Prosecutor’s assertion is not acceptable

① The evidence submitted by the prosecutor alone that it is difficult to see that Nonindicted 2 did not have the identity or independence of a business owner. (In light of the evidence, it is difficult to view that Nonindicted 2 dispatched a foreign worker to many companies, and that the foreign worker paid wages to a foreign worker after deducting a certain amount of expenses from the company, etc., the identity or independence of the business owner can be recognized in light of the fact that the foreign worker provided labor at the Defendant’s workplace is a temporary agency worker as prescribed by the Act on the Protection, etc. of Temporary Agency Workers. In light of the fact that Article 6-2(1)1 and 3 of the above Act imposes the duty to directly employ the temporary agency worker on the relevant user company, it is difficult to view that the Defendant directly employs a foreign worker, and that the penal provision under the principle of no punishment without law should strictly be interpreted in accordance with the language and text of Article 94 subparag. 9 of the Immigration Control Act, and thus, it is difficult to view that the foreign worker was dispatched to the employer.

② On the other hand, in Supreme Court en banc Decision 2007Du4995 Decided June 25, 2015, the prosecutor held that “The Immigration Control Act provides for the restriction on employment of foreigners only to prohibit the factual act of employment of foreigners who do not have the status of sojourn eligible for employment activities (hereinafter “employment qualification”), and furthermore, it is difficult to view that the term “employment” under Article 94 subparag. 9 of the Immigration Control Act is not a legal concept, but a factual act as a concept of employment. Since Article 18(2) of the Immigration Control Act limits the employment of foreign workers only at the workplace designated for the foreign workers, it is difficult to view the business owner of the workplace who actually provided employment services to the foreign workers without the status of sojourn eligible for employment activities (hereinafter “employment qualification”), and it is also difficult to view it as a “self-employed person” under the Immigration Control Act that the employer provided labor to the foreign workers under the same Act, even if it does not have any employment relationship with the foreign workers, and thus, it is also difficult to view it as a labor union-related with the foreign workers.

3. Conclusion

Since the prosecutor's appeal is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

Judges Lee Hun-Ba (Presiding Judge)