(영문) 광주지방법원 2020.2.13. 선고 2019구합12364 판결

A. On May 8, 2017, the Plaintiff entered into a labor contract with four arms (hereinafter “instant labor contract”) and entered into the Republic of Korea on May 8, 2018, and thereafter worked at “D” (hereinafter “instant business establishment”) located in Yongnam-gun, Yongnam-gun, and the main contents of the said labor contract are as follows.

1. Period of a labor contract: 36 months and contents of business - Business : Special crops-business : 6. Holidays related to agriculture, forestry and fishery: 10: A week on holidays: Whether accommodation facilities are provided: The amount to be borne by workers of other temporary residential facilities at the time of provision of accommodation facilities: 180,000 won; and

B. On April 9, 2018, the husband E, who actually runs the instant workplace, submitted a report on the change, etc. in the employment of foreign workers to the Defendant on April 15, 2018 pursuant to Article 17(1) of the former Act on the Employment, etc. of Foreign Workers (amended by Act No. 16274, Jan. 15, 2019; hereinafter referred to as the “former Act”) and Article 23(1)3 (hereinafter referred to as the “Enforcement Decree of the Act on the Employment, etc. of Foreign Workers”) of the Enforcement Decree of the Act on the Employment, etc. of Foreign Workers (hereinafter referred to as the “Enforcement Decree of the Act on the Employment, etc. of Foreign Workers”). The Defendant accepted the report and the main contents of the said report are as follows.

(5) On March 23, 2018, the day on which a cause occurs:

C. On May 29, 2018, the Plaintiff filed an application with the Defendant for the termination of the agreement on the instant employment contract or the alteration of the workplace on the ground of employer E’s breach of the working conditions. On July 2, 2018, the Defendant rendered a non-permission of the change of workplace (hereinafter “instant disposition”) on the ground that the said application by the Plaintiff does not constitute “the ground for change of workplace” pursuant to Article 25(1) of the former Foreign Employment Act.

D. The Plaintiff filed an administrative appeal against the Plaintiff, but dismissed on March 22, 2019. [Grounds for recognition] The Plaintiff did not dispute, as stated in Gap’s Evidence Nos. 1, 4 through 6, Eul’s Evidence Nos. 1, 2, 6, and 7, and the purport of the entire pleadings.

2. The plaintiff's assertion

A. Violation of the provisions of this case

The Defendant issued the instant disposition by deeming that the Plaintiff’s “foreign workers” under Article 17(1) of the former Foreign Employment Act and the instant provision delegated by the Plaintiff falls under the case of absence from work for at least five days without due process, such as obtaining the employer’s approval, or where his whereabouts are unknown. This case’s provision is unlawful as it goes beyond the bounds of delegation and violates the principle of statutory reservation, thereby infringing the freedom of choice of foreign workers, thereby nullifying the principle of excessive prohibition.

Therefore, the instant disposition based on the instant provision is also unlawful.

B. Violation of the disposition of this case

1) E intended to terminate an employment contract with the Plaintiff, which constitutes grounds for the change of place of business under Article 25(1)1 of the former Foreign Employment Act, and thus, the Defendant is obligated to permit the change of the Plaintiff’s place of business. Nevertheless, the instant disposition denying the Plaintiff’s instant application is unlawful.

2) The instant disposition deviates from and abused discretionary authority.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether the provision of this case is unlawful

The instant provision is a provision applicable to the employer’s report of employment management of foreign workers. As seen earlier, the Defendant rendered the instant disposition on the ground that the Plaintiff’s application for workplace change does not constitute a ground for workplace change under Article 25(1) of the former Foreign Employment Act, rather than the said provision. Therefore, the instant provision is not recognized as a premise for judgment, and thus, the Plaintiff

B. Whether the instant disposition is unlawful

1) Facts of recognition

A) On January 15, 2018, the Plaintiff was treated in the instant place of business with her hysium, while working at the instant place of business, with her hysium hysium for the hysium by the hospital, and was treated with her hysium hysium from January 25 to March 9, 2018.

B) B filed an application with the Industrial Manpower Management Corporation for assistance on the grounds of dispute regarding permission for changing the workplace with the Plaintiff. On March 8, 2018, an employee of the Industrial Manpower Management Corporation visited the instant workplace on a business trip with the interpreter, but the Plaintiff completed a business trip without resolving conflicts between the two parties, with the opinion that “I would like to leave the workplace to another workplace where I would like to use it as it does not use, because there is a lot of so-called so-called so-called so-called “I would like to leave the workplace for which I would like to leave the workplace,” and that “I would like to start the business trip if I would like to do so if you recover until you would not accept the change of the workplace,” and eventually, I would complete a business trip without resolving conflicts.

C) On March 23, 2018, the Plaintiff sought a change of place of business from the instant place of business (B) and the woodb employment center, and did not return after returning to the said place of business on the 26th of the same month. D) On March 28, 2018, the Plaintiff submitted to the Defendant a written petition that the Plaintiff was subject to assault and dismissal from the employer on March 25, 2018. The labor inspector of the Gwangju Regional Employment Agency (hereinafter “instant investigation”) issued a disposition of internal investigation as follows on April 13, 2018, following the investigation into the Plaintiff, E, labor companyF, and other foreign workers G, etc. of the instant place of business (hereinafter “instant investigation”).

As a result of internal investigation on the facts constituting the crime of ○○ Opinion, evidence that E used the Plaintiff, such as the Plaintiff’s attitude of working, G’s statement, labor company F’s statement and diagnosis or treatment record, cannot be found.---from March 23, 2018, the Plaintiff left his workplace without permission, and the business owner forced the signature of employment change to leave his workplace, etc., the Plaintiff’s intention of retirement can be presumed, and thus, it is difficult to find out the suspicion of violation of the Labor Standards Act, and thus, complete internal investigation (suspect of suspicion).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, 9, Eul evidence Nos. 3 and 5, the purport of the whole pleadings

2) Whether there are grounds for change of business place

Article 25(1) of the former Foreigner Employment Act provides that "foreign workers (excluding foreign workers employed by foreigners under Article 12(1)) may file an application for the change of their labor contract to another business or workplace with the employment security office, as prescribed by Ordinance of the Ministry of Employment and Labor, in any of the following cases. 1. Where an employer intends to terminate a labor contract during the term of the labor contract or refuse to renew the contract after the termination of the contract due to justifiable grounds; 2. Where the Minister of Employment and Labor recognizes that a foreign worker is unable to continue to work in his/her business or workplace 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), restriction on employment under Article 20(1), violation of the employer's working conditions, or unfair treatment, and Article 30(1) of the Enforcement Decree of the Foreigner Employment Act provides that "Any other reason prescribed by Presidential Decree" means any case where a foreign worker continues to work in his/her business or workplace, but it is deemed inappropriate to work in another business or workplace".

In addition to the purport of the whole evidence revealed above, the following circumstances, i.e., (i) the Plaintiff continued to request the change of workplace from around March 2018 to the employer, but the Plaintiff refused it and continued to work, and (ii) according to the record (Evidence A9) in which the Plaintiff returned to the workplace of this case on March 26, 2018, it is difficult to view the Plaintiff as the Plaintiff’s expression of intent to terminate the labor contract with the Plaintiff in light of the Plaintiff’s “A?” and the circumstances and contents, etc., although the Plaintiff stated “A?” but it is difficult to deem the Plaintiff as the Plaintiff’s expression of intent to terminate the labor contract in this case, (iii) in the process of the above dispute, the Plaintiff did not appear to be the Plaintiff’s expression of intention to cancel the labor contract, and (iv) the Plaintiff’s assertion that there was no reason to cancel the labor contract from around 10, 2000, and there was no reason to deem the Plaintiff’s refusal to work.

3) Whether the discretion is deviates or abused or not

In addition to the aforementioned evidence, the purpose of the Act on the Employment of Foreign Workers is to promote smooth supply and demand of human resources and balanced development of the national economy by systematically introducing and managing foreign workers. To this end, a visa is issued only to foreign workers who have entered into a labor contract with the workplace, and the workplace is allowed to be changed under certain conditions in exceptional cases. ② However, even though the ground for change of workplace is not recognized under the Act and subordinate statutes, the Plaintiff is demanding the change of workplace, and the system of employment of foreign workers can be fundamentally shaken if the change of workplace is permitted. ③ The Plaintiff asserted that the foreign worker was subject to unilateral dismissal and assault from the employer, but there is no evidence to acknowledge it as seen above. ④ In light of the purpose of the Act on the Employment of Foreign Workers and the employment system for foreign workers, the circumstances leading to the instant disposition, etc., the Plaintiff cannot be viewed as going beyond the national economy and its abuse of discretionary power.

5. Conclusion

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