2013 Gohap1940 (request for revocation of Disposition of Non-employment Permit)

A

The Tong-young Employment Center of the Busan Regional Employment and Labor Office;

October 8, 2013

November 5, 2013

1. The instant lawsuit shall be dismissed.

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

The defendant's rejection disposition of re-employment permission rendered by the plaintiff et al. on July 2, 2013 and July 15, 2013 shall be revoked.

1. Basic facts

A. On November 29, 2012, the Plaintiff of Sri Lankan’s nationality entered into a labor contract with D representative D and working period of the C representative D located in Dong-si B from December 1, 2012 to August 2, 2013, and thereafter, the E representative F succeeded to the Plaintiff’s employment.

B. The head of the Busan Regional Employment and Labor Office (the Plaintiff filed the instant lawsuit with the 'the 'the 'the 'the 'the 'the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' ' the ' the ' the ' the ' the ' the ' the ' the '

C. On July 15, 2013, F applied for the extension of the employment period against the Plaintiff to the head of the Tong-gu Office of the Busan Regional Employment and Labor Office, but was denied on the ground that there were grounds for limiting employment of foreign workers as stipulated in the relevant statutes.

[Ground of recognition] Evidence No. 1, Evidence No. 1, Eul No. 1, 2, and 3, and the purport of the whole pleading

2. Judgment on the defendant's main defense

A. Defendant’s assertion

According to Article 18-2 of the Act on the Employment, etc. of Foreign Workers, an application for re-employment permit for a foreign worker is filed by an employer who is not a foreign worker. Thus, the plaintiff is not in a position to seek revocation of the re-employment permit

(b) Related statutes;

Article 8 of the Act on the Employment, etc. of Foreign Workers

(1) Where an employer who has filed an application for recruiting nationals pursuant to Article 6 (1) fails to employ human resources despite receiving a job placement under paragraph (2) of the same Article, he/she shall file an application with the head of an employment security office for employment of foreign workers

(3) Upon receipt of an application under paragraph (1), the head of an employment security office shall recommend an eligible person among those registered in the list of foreign job seekers under Article 7 (1) to an employer who meets the requirements prescribed by Presidential Decree, such as the type and scale

(4) The head of an employment security office shall grant an employment permit without delay to an employer who has selected an eligible person recommended pursuant to paragraph (3) and issue a written employment permit for a foreign worker stating the name, etc. of the foreign worker.

Article 18 (Limitation on Period of Employment Activities)

Any foreign worker may engage in employment activities within the limit of three years from the date of entry into the Republic of Korea.

Article 18-2 (Special Cases for Restriction on Period of Employment Activities)

(1) Notwithstanding Article 18, any of the following foreign workers may be extended the employment activity period by up to two years on one occasion:

1. A foreign worker employed by an employer who has obtained an employment permit under Article 8 (4) and whose employment period under Article 18 has expired and who has requested the re-employment permit to the Minister of Employment and Labor before departure;

(2) Procedures for requesting re-employment permission under paragraph (1) and other necessary matters shall be prescribed by Ordinance of the Ministry of Employment and Labor.

According to the above relevant Acts and subordinate statutes, the right to apply for re-employment permission upon the expiration of the employment permit and employment period of a foreign worker is not a foreign worker but an employer of a foreign worker. In this case, as seen earlier, it is acknowledged that F, who employs the plaintiff, applied for the extension of employment period to the head of the Busan Regional Employment and Labor Office, and the defendant rejected the application. There is no evidence to acknowledge that the plaintiff applied for re-employment permission to the defendant that the defendant rejected the refusal disposition such as the purport of the claim. Accordingly, the lawsuit of this case is unlawful by seeking the revocation of an

Furthermore, even if the Plaintiff’s lawsuit in this case seeks revocation of “non-permission disposition on the extension of the period of employment for the extension of the period of employment with the expiration of the period of employment for the Defendant F on July 15, 2013, it is difficult to see that the directly related party to the above disposition as F has a legal interest to seek revocation, and thus, the lawsuit in this case is unlawful.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.

The presiding judge, judge, Gimhae

Judges Song Jin-ho

Judge Cho Jong-jin