2013Guhap 12219 Action for revocation of a disposition of non-permission for change of place of business

A

Head of the Ansan Labor Branch Office

May 1, 2014

June 26, 2014

1. The instant lawsuit shall be dismissed.

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

On July 3, 2013, the Defendant’s disposition of rejecting an application for change of place of business filed with the Plaintiff is revoked.

1. Details of the disposition;

A. The Plaintiff, as an employee of Bangladesh-si, entered the Republic of Korea on June 23, 2010 and worked in B, C, and D, and worked in E from December 26, 2012 to June 22, 2013, and the period of employment under Article 18 of the Act on the Employment, etc. of Foreign Workers is June 22, 2013.

B. On June 12, 2013, the employee of E visited the Defendant’s office (the Busan Local Employment and Labor Office within the District Employment and Labor Office) to ask the person in charge of the application for the extension of the employment period to the Plaintiff. Accordingly, the Defendant’s person in charge of the employment of the Plaintiff via the computer inquiry to dismiss two domestic workers on April 30, 2013 and May 30, 2013, and thus, the employment permit is impossible. The said employee notified that he did not raise any objection, and returned to the Plaintiff without submitting the application for the extension of the employment period to the Plaintiff.

C. On June 14, 2013, the Plaintiff visited the Defendant’s office as stated in the above paragraph (b) above, asked the person in charge of the Plaintiff whether it is possible to apply for the extension of employment period against the Plaintiff, and the Defendant’s person in charge of the Plaintiff notified the same purport as the described in Paragraph (b) and the Plaintiff returned to the Plaintiff without raising any specific objection. [Recognition grounds] The absence of dispute, the entries in subparagraphs A through 3, and the purport of the entire pleadings, and the purport of the whole pleadings.

2. Judgment on the Defendant’s defense prior to the merits

A. The defendant's assertion

E and the Plaintiff made verbal inquiries to the Defendant on the extension of the job-seeking period against the Plaintiff, and did not separately submit an application for extension of the job-seeking period, so the Defendant did not issue the instant refusal disposition, and thus the instant lawsuit is unlawful.

B. Determination

1) The issue of whether an administrative disposition is deemed an administrative disposition cannot be determined abstract, general, and in specific cases, an administrative disposition is a law enforcement with regard to specific facts conducted by an administrative agency as the public authority, which directly affects the rights and obligations of the people. Considering that an administrative disposition is a law enforcement with regard to a specific fact conducted by an administrative agency as the public authority, the administrative disposition is determined individually according to which the administrative disposition satisfies the requirements of establishment or validity. Without any legal basis, a certain act of an administrative agency has the same external form as an administrative disposition which objectively gives disadvantages to the people without any legal basis. If the counterpart of the act is recognized as an administrative disposition, it is necessary to take measures to eliminate disadvantages or apprehensions from the disadvantage of the people resulting from the act of the administrative agency, whether there is disadvantage or apprehensions suffered by the other party should be determined by considering not only the degree of law administration at that time, the level of rights of the people, but also the attitude of the relevant administrative agency related to the act (see, e.g., Supreme Court Decision 93Nu12619, Dec.

2) In light of the following circumstances, i.e., (i) the Plaintiff visited the Defendant’s office on June 14, 2013 and asked the Plaintiff about whether it is possible to apply for the extension of employment period against the Plaintiff, the application for the extension of employment period cannot be deemed as an application for the extension of employment period against the Plaintiff. (ii) Although the Defendant’s person in charge was verbally informed the Plaintiff after the computerized inquiry that there was a ground for disqualification for the extension of employment period, it is difficult to deem that the Plaintiff was aware of the ground for disqualification for the application for the extension of employment period affecting the rights and obligations, but the Defendant’s person in charge of 3 did not raise any objection against the Plaintiff and did not submit the application for the extension of employment period to the Plaintiff. In light of the above, the Defendant’s defense cannot be deemed to have issued the instant refusal disposition against the Plaintiff, which is the subject of administrative litigation

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

The presiding judge, judge and interest court

Judges or Senior Superintendent

Judges Kim Yong-nam