(영문) 대전지방법원 2018.1.30. 선고 2017구단34 판결

On February 4, 2016, the defendant revoked the disposition rejecting the application for change of the place of business against the plaintiff on February 4, 2016.

Reasons

1. Details of the disposition;

A. The Plaintiff, as a foreign worker of Uzbekistan’s nationality, was issued a job seeking registration certificate (term of validity of job seeking registration: the period of validity of job seeking registration) for which the period of validity has been extended by filing an application for extension of the period of job seeking registration (term of validity of job seeking registration: the period of validity: October 16, 2015; from January 16, 2016 to January 29, 2016), upon entering the Republic of Korea on April 1, 2015, and serving in the Medical Service V, and retired on October 13, 2015. On October 16, 2015, the Plaintiff was issued a job seeking registration certificate (term of validity of job seeking registration: the period of validity of the job seeking registration) with the Defendant having applied for extension of the period of workplace change on the grounds of disease.

B. On January 27, 2016, the Plaintiff: (a) arranged the Defendant as an eligible place of business, and served in the Nonparty Company as an employee of the Nonparty Company; (b) made an employment report within the job-seeking period to the employees of the Nonparty Company; and (c) issued all documents necessary for the employment report.

C. On February 4, 2016, the employee of the non-party company visited the Defendant’s office, the expiry date of the job seeking period, and asked the person in charge of the issuance of the employment permit. The Defendant officer provided a verbal guidance to the effect that the Plaintiff’s registration term of job seeking is excessive and the issuance of the employment permit is impossible (hereinafter “instant guidance”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 4, the purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits

A. The defendant's assertion

According to the Act on the Employment, etc. of Foreign Workers (hereinafter referred to as the "Foreign Workers Employment Act"), a person who may enter into an employment contract with a foreign worker and apply for the issuance of an employment permit is an employer, and the Plaintiff may not be subject to any disposition or disposition that the Plaintiff may apply for an employment permit (permission of change of place of business) under the Foreign Employment Act. Even if the employee of the non-party company, as alleged by the Plaintiff, can be seen as an act of applying for employment report and an act conducted in the capacity of the Plaintiff, it is merely an act of notifying the Defendant regarding the contents of inquiry made by the employee of the non-party company after the Plaintiff’s effective period of employment registration expires. Accordingly, the instant guidance is not limited to the Plaintiff, but does not constitute a rejection disposition that is subject to

B. Determination

1) The term "administrative disposition", which is the subject of an appeal litigation, means an act of an administrative agency under public law, which directly changes in the legal status of the other party or other interested persons, such as ordering the establishment of rights or the burden of obligations, or giving rise to other legal effects, with respect to a specific matter, and an act that does not directly change the legal status of the other party or other interested persons, such as notification of the fact, response to inquiries about the interpretation of statutes, etc., is not subject to appeal litigation (see, e.g., Supreme Court Decisions 91Nu2441, Oct. 13, 1992; 2006Du18362, Sept. 11, 2008).

2) According to Articles 8 and 9 of the Foreign Workers Employment Act, a foreign worker is entitled to apply for the issuance of a written employment permit with a foreign worker. (2) A foreign worker is entitled to apply for the change of place of business where any ground prescribed by the Act arises (Article 25 of the Foreign Workers Employment Act). However, even in such a case, where an employer recommended by the head of an employment safety agency to employ a foreign worker by furnishing all documents within the effective period of the registration of job seeking with the foreign worker, the head of the employment security agency issues a written employment permit to the relevant employer to complete the change of the workplace of the foreign worker. (3) The Plaintiff asserted that the instant notification issued by the Defendant against the non-party employee of the non-party company was a disposition rejecting the application for the change of the Plaintiff’s place of business, but according to the above facts of recognition, it is difficult to view the Defendant’s rejection disposition as the subject of appeal against the change of the Plaintiff’s place of business.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.