(영문) 대법원 2020.5.14.선고 2018도3690 판결

1. Article 18(1) of the Immigration Control Act provides, “If a foreigner intends to be employed in the Republic of Korea, he/she shall obtain the status of sojourn eligible for employment activities, as prescribed by Presidential Decree.” Article 18(3) provides, “No person shall employ any person who does not have the status of sojourn provided for in paragraph (1).” Article 94 Subparag. 9 of the same Act provides, “A person who employs a foreigner who does not have the status of sojourn eligible for employment activities in violation of Article 18(3) shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won.”

In light of the language and text of the above legal provision, the interpretation of the penal provision, and the regulatory contents of the Act on the Protection, etc. of Dispatched Workers (hereinafter “Dispatch Act”), it is reasonable to view that the meaning of the “employment” under Articles 94 subparag. 9 and 18(3) of the Immigration Control Act refers to the act of receiving labor from a foreigner who does not have the status of sojourn eligible for employment activities and paying remuneration to the foreigner. Therefore, even if the user company entered into a contract on temporary placement of workers or a contract equivalent thereto and dispatched the foreigner employed by the dispatched company to work for him/her, it cannot be deemed as an employment prohibited under Articles 94 subparag. 9 and 18(3) of the Immigration Control Act. Specific reasons are as follows.

A. Although the Immigration Control Act does not have a definition on "employment", the term "employment" generally refers to a contract under which one of the parties agrees to provide labor to the other party, and the other party agrees to pay remuneration therefor (Article 655 of the Civil Act). (b) Interpretation of the penal law should be strict, and interpretation in a direction unfavorable to the accused beyond the possible meaning of the language is not permitted pursuant to the prohibition of extended interpretation, which is the content of the criminal statutory caution (see Supreme Court en banc Decision 2015Do8335, Dec. 21, 2017, etc.). The Dispatch Act defines a person who uses temporary agency workers under a temporary agency contract as the user company (Article 2 subparag. 4), while the Labor Standards Act and the Industrial Safety and Health Act provide that the user company shall be the employer (Article 34 and Article 35), there is no provision as to the Immigration Control Act, such as the Immigration Control Act.

2. The gist of the instant prosecution is that the Defendant received 40 foreign workers (hereinafter referred to as the “foreign workers of this case”) who were arranged by the non-party 3, a human resources dispatch company, from the non-party 1 corporation (hereinafter referred to as “non-party 1 corporation”), who was not legally entitled to engage in job-seeking activities from the non-party 2 corporation (hereinafter referred to as “non-party 2 corporation”), and employed them.

3. As to this, the lower court affirmed the first instance judgment that acquitted the Defendant on the ground of its reasoning, including that it is difficult to view that the instant foreign workers were directly employed by the Defendant as being dispatched workers in the position of dispatched workers under Article 94 subparagraph 9 of the Immigration Control Act, even though the foreign workers in this case were in the position of dispatched workers between Nonindicted Company 1 and Nonindicted Company 1, and were not included in the "employer who was dispatched workers". Examining the reasoning of the original judgment in light of the aforementioned legal principles, relevant legal principles, and evidence duly adopted by the lower court, the lower court did not err in its judgment by misapprehending the legal doctrine on employment, implied labor contract relations, recognition of intention, etc. under the Immigration Control Act, or by exceeding the bounds of freedom of attention due to violating logical and empirical rules, contrary to what is alleged in the grounds of appeal.

4. Therefore, the appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.