(영문) 의정부지방법원 2017.10.17.선고 2017구합10185 판결

The defendant's rejection disposition against the plaintiff on June 3, 2016 against extension of the employment period of foreign workers shall be revoked.

Reasons

1. Basic facts

A. On June 2, 2016, the Plaintiff filed an application for extension of the employment period with respect to three Korean-registered foreign workers (C, D, E, and hereinafter referred to as “instant workers”) belonging to the Defendant Company A (hereinafter referred to as “A”) for the extension of employment period (hereinafter referred to as “instant application for extension”).

B. On June 3, 2016, the Defendant rendered a disposition rejecting the instant application for extension based on Article 18-2 of the Act on the Employment, etc. of Foreign Workers (hereinafter “Foreign Workers Employment Act”) against the Plaintiff on the ground that “the Plaintiff was confirmed to have retired 19 domestic workers, including F and G, etc., on April 30, 2016, within two months from the date of the instant application for extension.”

C. A, upon filing an application for commencing rehabilitation procedures with the District Court 2016 Gohap1004, was initiated on April 8, 2016, and a representative director B was appointed as a custodian.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 1, Eul evidence 1 (including branch numbers, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The adjustment in employment for domestic workers was conducted in an emergency where a rehabilitation procedure against A was commenced, and the workers of this case, as a four arms, are in fact unable to re-entry after having returned to the Republic of Korea in four arms due to the death of the base of living due to the five arms and the family injury, etc.

The instant disposition is illegal and unfair in light of the fact that 14 domestic workers, among 19 domestic workers who have retired from employment through employment adjustment, due to the good condition of A following the decision on commencing rehabilitation procedures, etc.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) The legislative intent of the Foreign Employment Act is to ensure smooth supply and demand of human resources and balanced development of the national economy by systematically introducing and managing foreign workers, and Article 18-2(1) of the Foreign Employment Act provides that "the term of employment may be extended" as an exception to the provisions of Article 18 of the Foreign Employment Act that limits foreign workers' employment activities for three years, as a matter of principle, the above provision provides a kind of special case as an exception to the provisions of Article 18 of the Foreign Employment Act that limits foreign workers' employment activities for three years, and foreign workers are eligible to legally find employment in the Republic of Korea within the scope of the period of employment activity, so the extension of the period of employment activities for foreign workers can be viewed as a kind of permanent disposition, whether to permit the extension of the period of employment activities for foreign workers depends on the discretion of the administrative agency, and if there are grounds such as the defendant's exercise of discretion, or there is a fact that serves as the basis for the disposition, or the principle of proportionality and equality, it

2) In light of the following circumstances, considering the following circumstances, it is difficult to deem that the disposition of this case was unlawful by deviating from or abusing discretion, even if the Plaintiff’s assertion was taken into account, considering the following circumstances, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

① Article 8(1) of the Foreign Workers Employment Act provides that the said Act shall make efforts to employ nationals first as the requirements for the employment permit of foreign workers (Article 8(3) of the Foreign Workers Employment Act); the type of business or a place of business that allows the employment of foreign workers (Article 8(3) of the same Act and Article 13-4 subparag. 1 of the Enforcement Decree of the same Act), and that the said Act does not dismiss domestic workers through employment adjustment during a certain period prior to obtaining the employment permit of foreign workers (Article 8(3) of the same Act and Article 13-4 subparag. 3 of the Enforcement Decree of the same Act). In full view of the above provisions, the employment permit system for foreign workers aims to ensure the smooth supply and demand of human resources necessary for industries by allowing a person with a certain scale of business to employ foreign workers without having made efforts to employ domestic workers, but not allowing the employment of domestic workers (Article 8(3) of the same Act and Article 13-4(3) of the same Decree).

② According to Article 8(3) of the Foreign Employment Act and Article 13-4 subparag. 3 of the Enforcement Decree of the same Act, in order for an employer to obtain a permit to employ a foreign worker, the employer shall not dismiss domestic workers through an adjustment in employment between two months and two months from the filing date of the application for recruiting nationals pursuant to Article 6(1) of the same Act from the date of issuance of the employment permit for foreign workers under Article 8(4) of the same Act. In this case, the Plaintiff left the position of 19 domestic workers through an adjustment in employment within

(3) Foreign workers whose extension of the period of employment is denied can also re-entry the Republic of Korea after the lapse of the said period under Article 18-3 of the Foreign Employment Act, so it is possible to enter the Republic of Korea after the lapse of the said period.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.