(영문) 서울고등법원 2012.10.19. 선고 2012누8313 판결

A. The Plaintiff, as a worker of Sri Lankan nationality, worked in B from July 1, 2008 to June 30, 201. The expiration date of the period of employment under Article 18 of the Act on the Employment, etc. of Foreign Workers is June 30, 201.

B. On March 23, 2011, in order to re-employment a foreign worker whose employment period has expired three years in B, the Defendant, in principle, applied for an extension of the employment period with the Defendant 45 days prior to the expiration date of employment period, but if the employment contract period between the employer and the foreign worker remains for three months or more prior to the expiration date of employment period, the Defendant sent by facsimile the "inwards inside the application for extension of employment period" to the effect that the application for extension should be submitted 15 days prior to the expiration date of employment period.

C. On June 16, 201, C, the director of B, visited the Defendant’s office (Silung Employment Center), asked the person in charge, whether it is possible to request the extension of the period of employment activities against the Plaintiff. Accordingly, the Defendant’s person in charge notified C of the lapse of the period of application for extension of employment activities against the Plaintiff through the computer inquiry, and C returned to C without submitting any objection, without submitting an application for extension of employment activities against the Plaintiff.

D. The Plaintiff entered into a renewed employment contract with B during the period from July 1, 2011 to June 30, 2012.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 4, Eul evidence 1 through 3, 9, 10, and the purport of whole pleadings]

2. The plaintiff's assertion

A. The Plaintiff was aware that the application for extension was made by the expiration date of the employment period, and the Defendant did not inform the Plaintiff or the Plaintiff’s employer of the relevant statutes, and thus, the instant disposition was unlawful.

B. The instant disposition is unlawful since it deviates from and abused discretionary power.

3. Related statutes;

It is as shown in the attached Table related statutes.

4. Determination as to the defendant's defense prior to the merits

A. The defendant's argument in the trial

B Since the Defendant did not submit to the Defendant an application for extension of employment period with respect to the Plaintiff, the instant lawsuit is unlawful since the Defendant did not render the instant refusal disposition.

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 in its subject, content, procedure, and form. Without any legal basis, a certain act of an administrative agency has the same external form as an administrative disposition that gives objectively disadvantage to the people. If the counterpart of the act is recognized as an administrative disposition, if it is necessary to take measures to eliminate disadvantages or apprehensions from the disadvantage or apprehension of the people derived from the act of the administrative agency, the issue of whether the other party is suffering from the act of the administrative agency 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 pertinent administrative name related to the act (see, e.g., Supreme Court Decision

2) On June 16, 201, the following circumstances revealed in the above facts of recognition, namely, B’s director visited the defendant’s office on June 16, 201, and asked the plaintiff about whether the application for extension of employment activities against the plaintiff can be seen as an application for extension of employment activities against the plaintiff. Although the defendant’s officer verbally informed C of the fact that the period of application for extension of employment activities against the plaintiff has expired through the computer inquiry, C cannot be seen as an rejection of application for extension of employment activities affecting the rights and obligations, C did not raise any objection, and C notified C of the fact that the period of application for extension of employment activities against the plaintiff has expired, and the defendant did not submit an application for extension of employment activities against the plaintiff. According to the above facts, it is difficult to find that there was no dispute between the plaintiff and the plaintiff on June 16, 2011 and the defendant’s rejection of the application for extension of employment activities against the plaintiff. However, it is difficult to find that the defendant's rejection of the application for extension of employment activities against the plaintiff.

5. Conclusion

Therefore, the lawsuit of this case shall be dismissed in an unlawful manner, and the judgment of the court of first instance is unfair in conclusion, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.