(영문) 대구지방법원 2017.9.13. 선고 2016구합23662 판결

The plaintiff is a specialized construction company holding a license for mechanical facility construction business or steel structure construction business, and the defendant is in charge of foreign workers' employment permission business under the Employment Security Act as the head of the employment security office under Article 2-2 subparagraph 1 of the Employment Security Act (hereinafter referred to as the "Foreign Workers Employment Act").

B. Hyundai Construction Co., Ltd., SK Construction Co., Ltd., which has a license for the Plaintiff’s subcontracting industry and environmental facility construction business (hereinafter “the above joint supply and demand company”), was awarded a contract for new nuclear power 1 and 2 main equipment installation works ordered by the Ulsan-gu headquarters. On January 28, 2013, the Plaintiff was awarded a subcontract for construction price of KRW 7,480,000,000 (including value-added tax) for the instant construction work among the above construction works, and the Plaintiff was awarded a contract for the installation of machinery pipeline/PRCRS pipeline installation works (4 Section) (hereinafter “instant construction work”). The Plaintiff filed an application for recruiting nationals to the Defendant pursuant to Article 6(1) of the Foreign Employment Act, and received job placement under Article 6(2) of the same Act from the Defendant, but failed to employ domestic human resources.

2) On November 11, 2016, the Plaintiff filed an application with the Defendant for issuance of a written employment permit for three foreign workers pursuant to Article 8(1) of the Foreign Employment Act, but the Defendant rejected the Plaintiff’s application on the ground that “the same day does not fall under a business or a workplace which is capable of employing a foreign employee outside of the place of business” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant disposition was based on the decision of the Policy Committee on Foreign Human Resources (hereinafter “Policy Committee”) publicly announced by the Minister of Employment and Labor on December 23, 2015 by the Minister of Employment and Labor (hereinafter “Policy Committee’s decision”). The policy committee’s decision was made with the explicit delegation of the Foreign Employment Act, and has legal nature as a supplementary rule to the so-called “Acts and subordinate statutes.” However, from 2007 to 2016, the Policy Committee excluded the construction license of a foreign worker from the application of “where the construction license of a construction business in a construction business in a petroleum chemical site is an industrial and environmental facility” (this part of the policy committee’s decision infringes on the freedom of employment permit of a foreign worker, regardless of whether a foreign worker’s license holder has the freedom of employment permit of employment.

In addition, the policy committee does not recognize the employment permit of foreign workers for construction works implemented with a license for industrial environmental facility, and the reason is that it does not have an employment room for foreign workers, it is necessary to prevent security and technology leakage for national key industries such as power plants, and to protect jobs for stabilizing the employment of domestic workers. However, at the time of the introduction of the industrial trainee system prior to the implementation of the employment permit system, foreign workers have already been assigned to the plant construction site, such as nuclear power plants, etc. at the time of the introduction of the employment permit system, and the technology leakage is unlikely to be done by the field skilled manpower, and it is not only a unique risk to the plant construction among many construction works, and the job protection for domestic workers is not limited to the plant construction. Thus, the policy committee's decision is contrary to the principle of equality by treating construction licenses, from among the construction enterprises at the petroleum plant, steel mill, and petroleum chemical site, unlike other construction licenses.

Therefore, the instant disposition should be revoked because it is unlawful because it infringes on the freedom of occupation and is made in accordance with the underlying provisions of the instant case, which is unconstitutional and invalid against the principle of equality.

2) The assertion that there is no ground for disposition (2) foreign workers’ employment permit is a binding act to be issued only if it falls under the requirements stipulated in the Foreign Employment Act. The Plaintiff is a specialized company with a license for the construction business of machinery and equipment, but does not have an industrial facility license. As such, the construction license does not fall under “in the case of a construction business of a power plant, steel mill, or petroleum chemical construction site” as stipulated in the instant ground provision. The instant disposition is unlawful since it is not recognized as a ground for disposition, and thus, should be revoked.

3) Even if the claim for deviation from and abuse of discretionary power (III)’s employment permit for foreign workers is considered to fall under the discretionary act, the instant disposition, compared to the public interest to be achieved through it, should be revoked in an unlawful manner that goes against the principle of proportionality and is contrary to the principle of proportionality, as it is excessively excessive to the extent of infringing the Plaintiff’s private interest.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Interpretation of the ground provisions of this case

1) Relevant legal principles

As a matter of principle, the law is a norm which has the same binding force against many and unspecified persons, so it should be interpreted that objective validity should be clarified, and as much as possible, it should be ensured that legal stability would not be undermined by maintaining consistency acceptable to all the persons. Moreover, since positive law is a provision that is established in consideration of a universal and typical matter, it is necessary to interpret that the law has a concrete validity so that it can be the most reasonable solution appropriate for specific matters in applying the law in various cases that occur in society reality. In short, the goal of statutory interpretation is to faithfully interpret the meaning of the language used in the law to the extent that it does not undermine legal stability. Furthermore, the legislative intent and purpose of the law should be faithfully interpreted as a principle, and furthermore, the legislative intent and purpose of the law, history of the enactment and amendment, harmony with the overall legal order, and relationship with other Acts and subordinate statutes, and thus, it should conform to the request of statutory interpretation as seen earlier. In addition, if there is no need to interpret the meaning and purpose of the law as defined in the law as a whole or there is no limit to any other statutory interpretation.

2) In accordance with Article 8(3) and (4) of the Single Employment Act, upon receipt of an application for employment permit for foreign workers, the head of the employment security office shall recommend an eligible person from among those registered in the list of foreign workers, such as the type and scale of foreign workers, to the employer who has selected the recommended eligible person, without delay, shall grant the employment permit and issue the employment permit for foreign workers stating the name, etc. of the selected foreign workers. Article 13(4)1 of the Enforcement Decree of the same Act stipulates that the above requirements prescribed by the Presidential Decree shall be applicable to the type of business introduced by foreign workers, business or place of business that can employ foreign workers.

Meanwhile, Article 4(1) of the Foreign Employment Act provides that "the Policy Committee shall deliberate and decide on important matters concerning the management and protection of employment," and Article 4(2) provides for matters to be deliberated and resolved by the Policy Committee and "other matters prescribed by Presidential Decree". Article 3(1) of the Enforcement Decree of the same Act provides that "any of the matters concerning a business or a place of business where foreign workers can be employed". In addition, Article 5(1) of the Foreign Employment Act provides that "the Minister of Employment and Labor shall establish and publish a plan for the introduction of foreign workers including the above matters after deliberation and resolution by the Policy Committee."

3) Interpretation of the ground provisions of this case

In light of the relevant legal principles and statutes, comprehensively taking account of the following circumstances revealed by comprehensively taking into account the health stand, the evidence as seen earlier, the entries in Gap evidence Nos. 5 and 8, and the purport of the entire arguments, it is reasonable to interpret the instant provision as excluding the application of the employment permit system for foreign workers even to the subordinate companies in the case where the construction license of the original contractor in the construction industry site of power plants, steel mills, and petroleum chemical construction site is industrial and environmental facilities.

(A) Of the decisions made by the Policy Committee in December 23, 2015 by the Minister of Employment and Labor, the instant provision on construction business among the types of business permitted for employment of foreign human resources is stipulated as follows. Whether a “construction company” in the following provisions refers to a responsible construction business entity, or whether a “construction company” refers to an individual construction business entity at the construction site, is unclear. Therefore, a systematic and logical interpretation method that clearly states the meaning of the said provision is necessary in consideration of the intent and purpose of the said provision within the possible meaning of the language and text.

A person shall be appointed.

From October 191, 191, a foreigner's entry into the Republic of Korea and provision of labor has increased in the number of cases where he/she becomes an illegal foreigner by leaving his/her place of business so that he/she is forced to work in a foreign factory of a domestic company, and accordingly social and economic problems such as the disturbance of the domestic labor market, shortage of human resources, violation of human rights in foreign workers, and violation of rights in foreign workers, etc., are caused by the enactment of the Act on Employment and Supply of Foreign Workers for the purpose of maintaining the function of foreign workers in a foreign country, but in fact, foreign workers have introduced foreign workers' employment law to be employed in a domestic industry.Although foreign workers have been allowed to work in a simple labor field under the name of industrial trainee after entering the Republic of Korea, but they have been forced to work in a simple labor field without the application of the Labor Standards Act due to the limitation of the status of trainees, and thus, the introduction of the Act on Employment and Supply of Foreign Workers for the purpose of smooth management of foreign workers (the Act on 10th of August 2003.

C) Article 4 of the former Act on the Employment of Foreign Workers (amended by Act No. 9798, Oct. 9, 2009; hereinafter the same) requires the Policy Committee to deliberate and decide on major matters concerning the employment management and protection of foreign workers (Article 4(1) and (2)). For the efficient operation of the Policy Council, the Foreign Manpower Employment Committee has made the Policy Committee deliberate on matters concerning the operation of the employment system of foreign workers and the protection of rights and interests of foreign workers (Article 4(5)). The 7th Foreign Manpower Employment Committee established the supply and demand plan for foreign workers in 2007 and set the criteria for the type of business permitted for foreign workers as follows in the case of construction business. In other words, in the case of construction business, the Committee set a total amount of the construction cost on the basis of the original contractor and set an additional decision to permit employment, and in the case of petroleum chemical and plant construction business, excluded from those subject to the employment permit at the beginning

* There is no record of petroleum chemical and plant construction on January 19, 07, and there is no record of the work, and the construction cost is excluded from the eligibility for employment, and consultation with the relevant ministries, labor-management organizations, and labor

D. Accordingly, the 6th Policy Committee, which was established on February 22, 2007, passed a resolution on the supply and demand plan for foreign human resources as the original plan in 2007 by the Employment Committee for Foreign Human Resources, and the Minister of Labor announced the plan to introduce foreign human resources in 2007 pursuant to Article 5(1) of the former Foreign Employment Act on March 2, 2007, and the relevant contents among them are as follows:

* In the case of the general employment permit system, the same type of business to be introduced in 06 and 07, and in the construction industry, the petroleum chemical and plant construction shall be excluded from the eligibility for employment.

(E) From February 14, 2008, the 8th Policy Committee decided to allow foreign workers to be employed in all construction works. However, construction licenses among the construction enterprises in the electricity plant, steel mills, and petroleum chemical construction sites are excluded from the application thereof. In light of the legislative history, legislative intent and purpose of the pertinent provision, it is clear that the pertinent provision was established as a policy decision to exclude foreign workers from the construction site of the above construction works, regardless of whether it is the prime contractor or subordinate contractor, as well as the construction work site of the above construction works (this case’s ground is that construction works are not subject to the 8th Construction Policy Committee on February 14, 2008, and some of the previous construction works are subject to the 8th Construction Policy Committee on the Construction Industry, which is an industrial construction site of the above construction works. However, it is not reasonable to interpret the provisions of the 8th Construction Industry Policy Committee on the grounds that they were not subject to the 8th Construction Work, which is an industrial construction site of the above construction industry.

In other words, the Ministry of Employment and Labor established the guidelines relating to the criteria for granting the employment permit for a construction business on October 2008, as follows. The current Ministry of Employment and Labor’s work manual related to the employment permit for foreign workers in the construction business among the work manual for the employment permit system for foreigners under the Ministry of Employment and Labor is equally stated. Since 2008, the Ministry of Employment and Labor, including the Defendant, has been applying the relevant provisions as above.

11. In accordance with the decision of the 8th policy committee on review, employment of foreign human resources in all construction works from March 1, 08, 08, where “construction licenses from among the construction enterprises in the power plants, steel mills, and petroleum chemical construction sites are industrial environmental facilities.” However, there are some confusions in the interpretation of the above exceptional provisions on the part of a construction enterprise, which requires the formulation of the processing standards for the above exceptional provisions. 2. Whether the construction enterprise is eligible for employment in the construction business ○○ Standard for Employment Permit of Construction Business should be determined on the basis of the prime contractor (competent construction contractor). If the prime contractor does not meet the employment standards, the employment of foreign human resources in the entire construction site (including the subcontractor) at the construction site at issue, if the prime contractor receives a contract for “power plants, steel mills, and petroleum chemical construction.”

Even if soil works, etc. are included in the construction site, all original and sub-contractors are not capable of employing foreign human resources; however, in the case of placing an order separately from power plants, steel mills, petroleum chemical construction works, soil construction works, etc. at the ordering site, in other words, where each original contract exists, foreign human resources can be employed in the Do construction, etc.

H) In the construction industry, the Ministry of Employment and Labor responded to the fact-finding of the court’s fact-finding that asked the reason why the subcontractor’s introduction of foreign human resources is restricted in the case where the prime contractor received a supply of electric power plants, steel mills, and petroleum chemical construction with the industrial facility license.

Until 2006, the number of foreign workers has been differentiated by original and subcontract, but it is reasonable to be based on the field (original contractor) in consideration of the fact that the original contractor, who is not subject to the permission of foreign employment, has a side effect such as by bypassing foreign power, making it unified on the basis of the original contractor. In light of the characteristics of the construction industry, many enterprises work at the site, and managing foreign human resources in the site from the original contractor.

I. As such, in the case of construction business in practice through the interpretation guidelines, work manuals, etc. of the Ministry of Employment and Labor from the enactment of 2008 to the present, it is judged whether the criteria for the decision of the Policy Committee should be met based on the original agency. Thus, the determination of whether the basic provisions of this case should be made based on the original agency is consistent with the legislative intent and purpose when considering the entire legal order, and the systematic and logical interpretation in line with the legislative intent and purpose is also consistent with the legislative intent.

D. Determination

1) Determination as to the assertion

A) Whether the freedom of occupation was infringed

The instant provision limits the freedom of occupation to freely employ foreign workers of the relevant entity by allowing the relevant entity and its subcontractor to not employ foreign workers if the entity headquarters in the power plant, steel mill, or petroleum chemical construction site has an industrial and exchange light equipment license.

Article 15 of the Constitution provides that "all citizens shall enjoy freedom of occupation." This guarantees freedom of occupation and includes "the freedom of free choice of occupation" and "the freedom of free performance of occupation" that they choose in a narrow sense that they want (see, e.g., Constitutional Court Order 97HunMa194, Mar. 26, 1998). In restricting freedom of occupation, as in other fundamental rights, the principle of excessive prohibition provided for in Article 37 (2) of the Constitution should be complied with, as in other fundamental rights, but the freedom of occupation is highly likely to be unconstitutional in examining laws and regulations that provide for the restriction, which are relatively broad legal regulation compared to the freedom of free choice of occupation (see, e.g., Constitutional Court Order 2003Hun-Ma428, Feb. 22, 2007). In particular, the introduction of the National Constitutional Court Decision 2009Hun-Ma194, Feb. 26, 2007.

In light of this, the employment permit system is a system that the government legally permits the employment of foreign workers for the category of business in which Korean workers are difficult to employ foreign workers among Korean enterprises. The relevant provision permits the employment of foreign workers for the construction business, but does not classify the original or subcontractor with the industrial and environmental facility construction site, and does not allow the employment of foreign workers if the original or subcontractor has the industrial and environmental facility license, thereby preventing security and technology outflow for the national key industries and protecting the jobs of the foreign workers in the workplace. Therefore, the legitimacy of the legislative purpose is recognized. Furthermore, since the original or subcontractor's employment permit system is likely to violate this legislative purpose by subcontracting some of the construction work and allowing the subcontractor to employ foreign workers, it is more appropriate means to achieve the above legislative purpose. Moreover, as seen earlier, it is more reasonable to establish the construction order system for the introduction of foreign workers at the construction site and establish the above chemical facility construction site, and it is more reasonable to establish the industrial facility construction order system at the construction site.

Therefore, this part of the plaintiff's assertion is without merit.

B) Whether the principle of equality is violated

The principle of equality, in essence, requires different treatment from that of the original company. However, such equality does not mean an absolute equality that denies all discriminatory treatment, but it means a relative equality that excludes discrimination without reasonable grounds in the legislation and the application of the law, and thus discrimination with reasonable grounds is not contrary to the principle of equality (see Constitutional Court Order 98Hun-Ba26, May 27, 199). If the main company has a license for industrial and environmental facilities due to the pertinent provision, the employment of foreign workers of the original and subordinate companies is restricted in the case where the main company has a license for industrial and environmental facilities, and discrimination is different from the general company. However, as seen earlier, it is basically a matter of legislative discretion or policy determination, and such determination of the scale and type of business, etc. is unreasonable and unfair, and as long as such determination of legislative purpose is obviously unreasonable and unfair, it is not contrary to the principle of equality. Accordingly, the provision of this case’s industrial security and employment opportunities for foreign workers in the construction site should be limited to the aforementioned domestic workers’ industrial facility’ industrial security.

Therefore, the plaintiff's assertion on this part is without merit.

2) Judgment on the argument

Under the premise of the interpretation of the provision of the ground of this case as seen earlier, the main contractor of this case had been awarded a contract for new nuclear power plant 1 and 2, and thus, it cannot employ foreign workers pursuant to the provision of this case. Accordingly, the Plaintiff, a subordinate company, cannot employ foreign workers at the workplace of this case. Accordingly, the disposition of this case rejecting the Plaintiff’s application is lawful, and the Plaintiff’s assertion on this part is without merit.

3) Judgment on the assertion

According to Article 8(3) and (4) of the Foreign Workers Employment Act that provides for the employment permit for foreign workers, the Defendant shall resist to employers meeting the requirements prescribed by Presidential Decree, such as the type and scale of business for the introduction of foreign workers, and recommend eligible persons among those registered in the list of foreign job seekers, and grant employment permit to employers who select the above eligible persons, and such eligible persons may not be recommended or granted employment permit to employers who fail to meet the requirements, which constitutes a binding act. Accordingly, the Plaintiff’s assertion of deviation or abuse of discretionary power on the premise that the instant disposition is discretionary act is a discretionary act is not justifiable.

3. Conclusion

The plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.