2015Nu51301 Revocation of the disposition of refusing permission to change the workplace of foreign workers

A

Head of Central and Central Regional Employment and Labor Agency:

Suwon District Court Decision 2014Gudan5932 Decided July 6, 2015

October 27, 2015

November 17, 2015

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's rejection disposition against the plaintiff on May 20, 2013 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. The Plaintiff, who is a nationality of Pakistan, entered the Republic of Korea with the employment permit for foreign workers from April 20, 201 to April 19, 2014 pursuant to the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers”) and has been working in Bobcheon-si Co., Ltd., Ltd. (hereinafter “foreign company”) from April 20, 201 to April 20, 201.

B. On July 4, 2012, the non-party company submitted a leave program to the Defendant from April 22, 2012 to June 23, 2012, and filed a report on the change of employment of foreign workers with the purport that “the Plaintiff is not reinstated after June 25, 2012,” and the Defendant accepted the report. The Plaintiff subsequently filed an application for the change of workplace with the Defendant on April 5, 2013 due to the termination of the labor contract (Termination during the labor contract period). On May 20, 2013, the Defendant rejected the application for change of workplace (hereinafter “instant disposition”). On June 25, 2012, the Plaintiff filed an objection against the Plaintiff’s application for change of workplace and the report on change of employment (e.g., cancellation during the employment contract period) from June 25, 2012 to June 5, 2013,” and rejected the application for change of workplace (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on February 18, 2014, and the said written ruling was notified to the Plaintiff on May 30, 2014. [Grounds for recognition] The Plaintiff did not dispute, each entry in Gap’s 1, 2, and Eul’s 1 through 4 (including each number of numbers if the number of pages exists), and the purport of the entire pleadings.

2. Judgment on the defendant's main defense

A. The defendant's assertion

A foreign worker may engage in employment activities within three years from entry into the Republic of Korea. An exceptionally re-employment permit may be granted an extension of employment activities by up to two years only once. The Plaintiff entered the Republic of Korea on April 20, 201 and the three-year employment period has already elapsed, and the period of employment has not been extended. Thus, there is no benefit to seek revocation because the instant disposition was revoked and it is impossible to change the place of business to change the place of business.

B. Whether the lawsuit is an interest

1) Relevant provisions of the Foreign Employment Act (Restrictions on the duration of employment) Article 18

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 concerning Restriction on Period of Employment Activities)

(1) Notwithstanding Article 18, a foreign worker falling under any of the following subparagraphs may be extended only once by up to two years of employment activities:

1. A foreign worker employed by an employer who has obtained an employment permit under Article 8 (4) and whose re-employment permit is requested to the Minister of Employment and Labor before departure after the expiration of three years for employment activities under Article 18;

2. A foreign worker employed by an employer who has obtained certification of exceptionally permissible employment under Article 12 (3) and whose employer has requested the Minister of Employment and Labor to permit the re-employment before leaving the Republic of Korea after the expiration of three years of employment period referred to in Article 18.

No foreign worker (excluding foreign workers referred to in Article 12 (1)) who left Korea after being employed in the Republic of Korea shall be employed again pursuant to this Act, unless six months have passed from the date of departure from the Republic of Korea.

(1) Notwithstanding Article 18-3, if a foreign worker meeting all the following requirements and an employer files an application for an employment permit after re-entry of a foreign worker after the expiration of the employment period extended pursuant to Article 18-2, prior to departure from the Republic of Korea, the Minister of Employment and Labor may allow the foreign worker to re-employment pursuant to this Act after three

1. He/she shall not change his/her business or place of business during the period of employment prescribed in Articles 18 and 18-2 (in cases of changing his/her business or place of business under Article 25 (1) 2, the period of employment contract up to the expiration date of the period of employment with the new employer granting an employment permit after re-entry shall exceed one

2. The policy committee shall work in a business or workplace prescribed by Presidential Decree as having difficulty in employing nationals in consideration of the type, scale, etc. of introduced business;

3. A foreign worker (excluding foreign workers under Article 12 (1)) who has entered into an employment contract that takes effect with the relevant employer for at least one year from the date on which work commences after re-entry, and Article 25 (Permission for Change of Business or Place of Business) (1) Foreign workers (excluding foreign workers under Article 12 (1)) may file an application with the head of an employment security office for change of another business or place

1. Where an employer intends to terminate a labor contract during the term of a labor contract due to justifiable grounds or to refuse to renew the contract after the contract expires;

2. Where the Minister of Employment and Labor recognizes that a foreign worker is unable to continue to work in his/her business or place of business under social norms due to reasons not attributable to the foreign worker, such as suspension or discontinuance of business, cancellation of an employment permit under Article 19 (1), restrictions on employment under Article 20 (1), violations of employer'

3. Where any other cause or event prescribed by Presidential Decree occurs.

2) Determination

A) A lawsuit seeking the revocation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by excluding an illegal state arising from an illegal disposition and protecting and remedying the rights and interests infringed or obstructed by such disposition. Thus, even if the illegal disposition is revoked, if it is impossible to recover the original state, there is no benefit to seek the revocation thereof (see, e.g., Supreme Court Decision 20048538, Jan. 11, 2007).

B) Comprehensively considering the above provisions and facts in the instant case, a foreign worker employed at a domestic place of business with an employment permit can work only for three years from the date of entry into the Republic of Korea under Article 18 of the Foreign Teaching Service Act, and an extension of the employment period under Article 18-2 (1) of the Foreign Employment Act shall be limited to the case where the Plaintiff’s employer requested the employment permit to the Minister of Employment and Labor before the expiration of the three-year employment period. As long as the employment period has already expired after three years of entry into the Republic of Korea, and there is no request from the employer for re-employment permit by the employer, even if the disposition in this case is revoked, it is impossible for the Plaintiff to find a job in another place of business or obtain an extension of the employment period. Moreover, the benefit of the restriction on employment under Article 18-4 (1) of the Foreign Employment Act is possible only if the Plaintiff applied for an employment permit after re-entry, and the Plaintiff cannot receive the above special benefit because the employer itself is impossible to apply in advance for the employment permit after re-entry.

3. Conclusion

Therefore, the judgment of the first instance court, which has different conclusions, is unfair, so it is so decided as per Disposition by accepting the defendant's appeal and cancelling the judgment of the first instance court and rejecting the lawsuit of this case.

Judges of the presiding judge;

Judge Jin Order

Judges Park Chang-chul