(영문) 부산지방법원 2014.9.23. 선고 2013가단96383 판결

The defendant shall pay to the plaintiff 3,00,000 won with 20% interest per annum from the service day of the copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. On November 23, 2010, the Plaintiff of Cambodia’s nationality entered into a labor contract with D representative E located in Kimhae-si, Kim Jong-si, and concluded the said employment contract on or before May 7, 2013, when he/she entered into an employment contract between November 23, 2010 and November 22, 2013.

B. After that, on July 19, 2013, the Plaintiff entered into an employment contract with the representative of G Co., Ltd. located in G Kim Jong-siF and the working period from July 26, 2013 to November 22, 2013, and retired on September 23, 2013 as the Plaintiff wishes to retire.

C. On September 30, 2013, the Plaintiff visited the Ministry of Employment and Labor to which the Defendant belongs and submitted an application for change of workplace.

D. The Plaintiff was unable to work in a new place of business, and the period of employment expired on November 22, 2013.

[Ground of recognition] Facts without dispute, Eul evidence Nos. 1, 2, 6, purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

On September 30, 2013, the Plaintiff visited the Ministry of Employment and Labor to which the Defendant belongs and applied for job-seeking in accordance with the guidance of the public official in charge, and the public official in charge provided the guidance that the job-seeking period of the workplace is until November 22, 2013, which is the expiration period of the visa, and did not inform the relevant statutes in relation to the re-employment.

Under the current employment permit system for foreign workers, the defendant has a duty of good faith to explain the basic contents related to the employment of foreign workers, but the public official of the Ministry of Employment and Labor Kimhae Employment Center belonging to the defendant did not properly explain about the reemployment permit, thereby suffering from loss of opportunity to work in the Republic of Korea for one year and ten months.

B. Relevant statutes

(1) The former Act on the Employment, etc. of Foreign Workers (wholly amended by Act No. 12371, Jan. 28, 2014)

Article 11 (Employment Training for Foreign Workers)

① 외국인근로자는 입국한 후에 고용노동부령으로 정하는 기간 이내에 대통령령으로 정하는 기관에서 국내 취업활동에 필요한 사항을 주지(周知)시키기 위하여 실시하는 교육(이하 '외국인 취업교육'이라 한다)을 받아야 한다.

(2) Every employer shall provide foreign workers with an opportunity to receive employment training for foreign workers.

(3) The hours and details of employment education for foreign workers and other matters necessary for employment education for foreign workers shall be prescribed by Ordinance of the Ministry of Employment and Labor.

Article 18 (Limitation on Period of Employment Activities) A foreign worker may engage in employment activities within three years from the date of entry into the Republic of Korea.

Article 18-2 (Special Cases for Restriction on Period of Employment Activities)

(1) Notwithstanding Article 18, any of the following foreign workers may be granted an extension of the period of employment activities by up to two years only once:

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 re-employment permit is requested to the Minister of Employment and Labor before departure after the expiration of the three years of employment period referred to in Article 18;

(2) Matters necessary for procedures for requesting re-employment permission under paragraph (1) shall be prescribed by Ordinance of the Ministry of Employment and Labor.

【Enforcement Decree of the former Act on the Employment, etc. of Foreign Workers

"Institution prescribed by Presidential Decree" in Article 11 (1) of the Act means any of the following institutions:

1. Human Resources Development Service;

2. A non-profit corporation or non-profit organization designated and announced by the Minister of Employment and Labor in consideration of industrial characteristics, etc. In such cases, the Minister of Labor shall determine the specific standards and procedures;

Article 14-2 (Special Cases concerning Restriction on Period of Employment) of the Enforcement Rule of the former Act on the Employment, etc. of Foreign Workers (amended by Ordinance of the Ministry of Employment and Labor No. 94 on December 30, 2013)

(1) In order to have a foreign worker extend the period of employment pursuant to Article 18-2 of the Act, an employer shall submit to the head of the competent employment security office having jurisdiction over the location of the relevant foreign worker an application for extension of the period of employment of the worker whose period of employment expires in attached Form 12-3 by seven days before the expiration of the period of employment of the relevant worker, along with the following documents:

1. Copy of business registration certificate;

2. Copy of foreigner registration certificate;

3. Copy of the passport;

4. Termination of a copy of standard labor contract.

C. Determination

According to the above relevant statutes, the right to apply for employment permit and re-employment permit for a foreign worker upon the expiration of the employment period is not a foreign worker but an employer of a foreign worker. Therefore, it is clear that the defendant has no legal obligation to explain the basic contents of the re-employment permit to a foreign worker.

Furthermore, as alleged by the Plaintiff, whether there is an obligation under the good faith principle to explain about the re-employment permit for foreign workers to the Defendant, but the principle of trust and good faith under the Civil Act shall not be exercised or performed by any party to a legal relationship in consideration of the other party's interest in terms of the content of the other party's interest, the right or obligation to exercise or to exercise, and the other party's interest, and the other party's trust shall be reasonable in applying such abstract norm to a specific legal relationship (see Supreme Court Decision 87Meu2407, May 9, 1989). As examined in the above relevant laws, the Plaintiff and the Defendant have the status of a party to any legal relationship.

Inasmuch as it is difficult to see that there is any legal relationship between the plaintiff and the defendant, and there is no evidence to prove that there is any legal relationship between the plaintiff and the defendant, the plaintiff's assertion on this premise is without merit.

As alleged by the Plaintiff, even if the Defendant has an obligation to explain to the Defendant under the good faith principle, it is difficult to view that the Defendant had a duty to explain the following circumstances, which are recognized by the respective descriptions of the evidence Nos. 3, 4, and 5-1 through 3 of the evidence Nos. 5. In other words, the Defendant provided education on the relevant laws and regulations when foreign workers enter the Republic of Korea from November 23, 2010 to December 25, 2010, and the Plaintiff completed employment training for 20 hours in total, including Korean and Korean culture understanding, industrial safety and health, basic functions, labor relations, and Immigration Control Act, etc., on May 20, 2013 and October 2, 2013.

Therefore, the plaintiff's assertion is no reason to see.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.