(영문) 창원지방법원 2012.2.2. 선고 2011구합103 판결

B. C has employed the Plaintiff pursuant to Article 8(4) of the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”), and the termination date of the employment permit period for the Plaintiff is July 7, 2010. C’s representative B applied for the extension of the employment permit period to the Defendant on June 8, 2010, prior to the Plaintiff’s expiration date of employment 15 days prior to the Plaintiff’s expiration date. The Defendant permitted the said application.

D. However, on June 28, 2010, the Plaintiff submitted a report on changes in employment of foreign workers to the effect that the re-employment of the Plaintiff is revoked on June 28, 2010, as the Plaintiff’s return to the Plaintiff after the lapse of one month after the lapse of the leave period and the dispute between B and the Plaintiff arising between B and the wage issue, and the Plaintiff would retire from the Plaintiff. Accordingly, the Defendant revoked the extension of the employment period for the

E. Since then, the Plaintiff filed a request for remedy against B for unfair dismissal, and on August 30, 2010 at the Gyeongnam Regional Labor Relations Commission, “B shall return the Plaintiff to its original position as of June 29, 2010, and apply for re-employment to the employment center in the competent Ministry of Labor.” On September 10, 2010, B again filed a request for the extension of the employment period for the expiration of employment period (hereinafter “instant application”) with the Defendant on September 29, 2010, and the Defendant rejected the instant disposition on September 29, 2010 on the ground that B did not comply with the application for the extension of employment period for the expiration of employment period (hereinafter “application for extension”).

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

2. Determination on the legitimacy of the instant lawsuit

A. Defendant’s defense prior to the merits

(1) The Defendant asserts that the other party to the instant disposition did not have standing to sue against the Plaintiff, who is not the other party to the instant disposition, and that the instant lawsuit is unlawful, since C discontinued on May 11, 2011, there is no benefit to seek revocation of the instant disposition.

B. Determination

(1) Whether standing to sue is standing

The standing to sue is stable in cases where a third party who is not the direct counter-party to an administrative disposition has legal interest in seeking cancellation of the relevant administrative disposition. However, the legal interest here refers to cases where there are direct and specific interests protected by the law based on the relevant disposition. However, this does not include cases where there are indirect or factual interests, such as abstract, average, general interests of the general public as a result of protecting public (see, e.g., Supreme Court Decision 97Nu1256, Dec. 7, 199). With respect to this case, Article 18-2 of the Foreign Employment Act provides that a foreign worker who is employed by an employer who has obtained an employment permit under Article 8(4) of the Foreign Workers Employment Act before departure from the Republic of Korea may obtain an application for extension of the employment permit within the scope of less than 2 years, which is lawfully extended by 3 months prior to the expiration of the employment permit to enable the employer to obtain an extension of the employment permit within the period of 10 days prior to the expiration of the employment permit (the extension period of employment permit between the employer and the foreign worker).

(2) Whether a lawsuit is an interest

Article 25(1) of the Foreign Workers Employment Act provides that if it is difficult to continue a normal employment relationship with a foreign worker whose employment period has been extended pursuant to Article 18-2 after obtaining an employment permit pursuant to Article 8(4) of the Foreign Workers Employment Act, due to the occurrence of a case falling under any of the subparagraphs of Article 25(1), the foreign worker, whose employment period has been extended pursuant to Article 18-2, may file an application for the change to another business or place of business, with the head of the competent agency in the employment security, as prescribed by Ordinance of the Ministry of Employment and Labor. Article 25(1)2 of the Foreign Workers Act provides that "if it is deemed that the foreign worker is unable to continue his/her work due to business suspension, closure, or other reasons not attributable to the foreign worker, such as business suspension, closure, or other foreign worker, even if the disposition in this case is revoked and the extension of the employment period is possible

(3) Sub-determination

Therefore, the defendant's defense prior to the merits is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

① Considering that Article 24-6 (1) 2 of the Enforcement Decree of the Immigration Control Act, a general company of the Foreign Workers Act, provides that permission for extension of the period of sojourn to a person who is deemed to need extension of the period of sojourn permitted due to the need for judicial mooring or investigation, the period of employment should be extended to the Plaintiff. Since the Defendant’s dismissal of the Plaintiff pursuant to the Gannam Regional Labor Relations Commission’s protocol of 2010 and 207 protocol of 2010 and the dismissal of the Plaintiff has no effect as unfair, it shall be deemed that the labor contract between the Plaintiff and B continues to exist after being renewed on July 10, 201 pursuant to Article 16 of the Labor Standards Act and July 9, 201, since Article 24-6 (1) 2 of the Enforcement Decree of the Immigration Control Act provides that the Defendant submitted an application for extension of the period of employment to the Defendant on September 15, 2010, even if the period of employment extension was not timely established, the Defendant’s disposition was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination on the first argument

However, Article 24-6 of the Enforcement Decree of the Immigration Control Act was deleted upon the amendment by Presidential Decree No. 20076 on June 1, 2007. Furthermore, Article 24-6 of the former Enforcement Decree of the Immigration Control Act (amended by Presidential Decree No. 20076 of Jun. 1, 2007) is related to the extension of the period of stay for training employees engaged in industrial training activities, and it is not a ground provision applicable to this case. Thus, the plaintiff's assertion on this part is without merit.

(2) Judgment on the second argument

Even if the labor contract between the plaintiff and the foreign worker continues to exist until July 9, 2011 as alleged by the plaintiff, Article 14-2 of the former Rules on Private Employment Act provides that if the term of the labor contract between the plaintiff and the foreign worker remains for not less than three months prior to the expiration of the term of the employment contract, the application for extension shall be made 15 days prior to the expiration of the term of the employment contract, and if the term of the employment contract remains for not less than three months, the application for extension shall be filed 15 days prior to the expiration of the term of the employment contract, regardless of when the term of the employment contract expires, by not later than 15 days prior to the expiration of the term of the employment contract. If the B did not submit an application for extension 15 days prior to the expiration of the term of employment, the submission deadline of the application for extension as stipulated in

(3) Judgment on the third argument

In light of the following circumstances, ① the legislative intent of the Foreign Workers Employment Act enacted for the purpose of facilitating the supply and demand of human resources and balanced development of the national economy by systematically introducing and managing foreign workers under Article 18-2(1) of the Foreign Workers Employment Act, which, in principle, limits foreign workers’ employment activities to three years, as an exception to the provisions of Article 18 of the Foreign Workers Employment Act, which limits foreign workers’ employment activities to three years, a foreign worker is legally entitled to an extension of employment period within the scope of employment period, and thus, it appears that the extension of employment period depends on the discretion of an administrative agency to permit the extension of employment period after the expiration of the employment period. ② Since the foreign worker's employment period in the Republic of Korea can not be seen as a lawful extension of employment period after the expiration of the employment period, the extension of employment period in the Republic of Korea can not be seen as a lawful extension of employment period under Article 18 of the Foreign Workers Employment Act.

4. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.