(영문) 대전고등법원 2018.6.14. 선고 2018누10673 판결

The judgment of the first instance is revoked. On February 4, 2016, the defendant revoked the rejection of the application to change the place of business of a foreign worker against the plaintiff.

Reasons

1. Details of the disposition;

The reasoning for this part of this Court is as stated in Paragraph 1 of Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the reasoning for this part is the same as that for the judgment of the court of first instance except as follows.

○, on the 2nd page, ‘the 14th inquiry' was cited as ‘the inquiry of this case’ (hereinafter referred to as ‘the inquiry of this case’).

A. The parties' assertion

1) The defendant's assertion

A) The instant guidance merely provides a verbal guidance to the effect that the validity period of the Plaintiff’s registration of job seeking is overfinite with respect to the instant inquiry of the employee of the non-party company, and thus, the issuance of an employment permit is not possible, and thus, it cannot be deemed as a rejection disposition subject to an appeal litigation.

B) Even if the instant guidance is assumed to be a rejection disposition subject to appeal, pursuant to the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”), the right to apply for the issuance of an employment permit is recognized only to the employer, and the right to apply for the issuance of the employment permit is not recognized to the foreign worker. The Plaintiff, a foreign worker, has no right to apply for the issuance of the employment permit,

2) The plaintiff's assertion

A) The fact that the employee of the non-party company found the defendant with all documents necessary for the employment report and asked about the issuance of the employment permit constitutes an act of applying for employment permit. The defendant's person responsible for the defendant's instruction that the issuance of the employment permit is inappropriate because the term of validity of the plaintiff's employment registration for job seeking expires can be deemed as the rejection of the application for employment permit. Thus, the guidance of this case constitutes a rejection disposition subject to appeal

B) Article 6 and 8 of the Foreign Employment Act provides that a foreign worker’s right to work is guaranteed by the restriction on foreign workers’ freedom to choose an occupation. Thus, even if only the “employer” is the subject of application for employment permit under Articles 6 and 8 of the Foreign Employment Act, considering the legislative intent of the said foreign employment law, the foreign worker also has the right to apply for the permission of change of place of business. Accordingly, the Plaintiff is entitled to have standing to seek revocation of the instant guidance.

B. Relevant provisions

The provisions of the attached Table shall be as specified in the attached Table.

1) First of all, whether the Plaintiff seeks cancellation of the ‘disposition rejecting the application for change of business place'. According to the purport of the instant claim, the Plaintiff sought cancellation of the ‘application for change of business place' (see Article 25(1) of the Foreign Employment Act).

However, the Defendant already recommended a non-party company after issuing the certificate of registration of job seeking upon the Plaintiff’s application for change of business place, and the Plaintiff concluded a labor contract with the non-party company, and the non-party company failed to file an application for issuance of the employment permit under Article 8(4) of the Foreign Employment Act, and thus the Plaintiff was unable to work in the non-party company. In other words, the reason why the Plaintiff was unable to work in the non-party company is not because the Defendant rejected the application for change of business place under Article 25(1) of the Foreign Employment Act, but the non-party company failed to obtain the employment permit under Articles 25(2) and 8(4) of the Foreign Employment Act. In addition, the Plaintiff did not provide that the foreign worker can apply for the issuance of the employment permit. However, considering the overall purport of the Foreign Employment Act, the Plaintiff asserts that the right to apply for the issuance of the employment permit should also be recognized to the foreign worker.

In full view of the above circumstances, it is reasonable to view that the Plaintiff’s guidance of this case constitutes “disposition of refusal of the application for the issuance of the employment permit” and to seek the revocation thereof (However, even if the Plaintiff seeks the revocation of the rejection of the application for the alteration of workplace, as seen later, the fact that the Plaintiff applied for a specific disposition to the Defendant is not acknowledged, and there is no difference in the conclusion that the instant lawsuit is unlawful

2) Next, this case’s guidance falls under “a rejection disposition” subject to appeal litigation.

A) In principle, an expression of intent to file an application with an administrative agency should be clearly and definitely determined (see, e.g., Supreme Court Decision 2003Du13236, Sept. 24, 2004). However, whether an expression of intent to seek a certain disposition against an administrative agency constitutes an act of filing an application should be determined by comprehensively taking into account various circumstances, such as the content, time, purport, etc. of the expression of intent.

B) In light of the above legal principles, as seen earlier, the Defendant’s employee visited the Defendant’s office on February 4, 2016 and asked the person in charge of the issuance of an employment permit verbally and cannot be deemed as an act of filing an application against the Defendant, an administrative agency. Unless the Plaintiff’s application is acknowledged, the instant guidance by the Defendant’s person in charge cannot be deemed as a rejection disposition subject to appeal.

3) Ultimately, the instant guidance cannot be deemed as a “disposition against rejection,” which is the subject of an appeal litigation, and thus, the instant lawsuit is unlawful without having to examine whether the Plaintiff has standing to sue to seek revocation of the instant guidance, whether the Plaintiff is entitled to apply for the issuance of an employment permit, etc.

3. Conclusion

Therefore, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges

Allowable judges of the presiding judge

Judges Gim Hong-s

Judges Dok-Ba

Note tin

1) The plaintiff indicated in the complaint, petition of appeal, etc. that he/she is "A (B)", but if the party is a foreigner, the foreign language shall be used.

The whole name shall be indicated in Korean, and the relevant foreign language shall be stated in Korean characters, and as such, the written judgment form shall be written.

See Article 9(5) of the Established Rules (2003~12 of the date), the number of see Article 9(5), and ex officio the Plaintiff’s indication shall be corrected.