[Defendant] Defendant
[Appellant] Prosecutor
[Defense Counsel] Wooil LLC (Law Firm) and 1 other
[Judgment Below] Seoul Central District Court Decision 2017No3705, decided February 1, 2018
[Order]
The appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
1. Article 18(1) of the Immigration Control Act (출입국관리법) provides that "a foreigner who intends to work in the Republic of Korea shall obtain a status of sojourn that permits engagement in profit-making activities, as prescribed by Presidential Decree." Article 18(3) provides that "no one shall employ a person who does not hold the status of sojourn under paragraph (1)." Article 94, Item 9 of the same Act provides that "a person who employs a foreigner who does not hold a status of sojourn permitting engagement in profit-making activities, in violation of Article 18(3), shall be punished by imprisonment for not more than three years or by a fine not exceeding 20 million won."
In light of the wording of the above statutory provisions, the principles of interpretation of penal statutes, and the regulatory content of the Act on the Protection, etc. of Temporary Agency Workers (파견근로자 보호 등에 관한 법률, hereinafter the "Temporary Agency Workers Act"), it is reasonable to interpret the meaning of "employment" under Article 94, Item 9 and Article 18(3) of the Immigration Control Act as referring to the act of receiving labor from a foreigner who does not hold a status of sojourn permitting engagement in profit-making activities and paying remuneration therefor. Accordingly, even if a user company (사용사업주) enters into a worker dispatch agreement or an equivalent contract and receives a foreigner employed by a dispatching company (파견사업주) to work for its own benefit, this cannot be deemed "employment" prohibited under Article 94, Item 9 and Article 18(3) of the Immigration Control Act. The specific reasons are as follows.
A. Although the Immigration Control Act does not contain a definitional provision regarding "employment," in general, "employment" refers to a contract whereby one party agrees to provide labor to the other party and the other party agrees to pay remuneration therefor (Article 655 of the Civil Act (민법)).
B. The interpretation of penal statutes must be strict, and interpreting them beyond the possible meaning of the text in a manner unfavorable to the defendant is not permitted under the prohibition of expansive interpretation, which is a component of the principle of no punishment without law (see, e.g., Supreme Court en banc Decision 2015Do8335, decided December 21, 2017).
C. The Temporary Agency Workers Act defines a person who uses a dispatched worker under a worker dispatch agreement as a "user company" (Article 2, Item 4), and provides that, in applying certain provisions of the Labor Standards Act (근로기준법) and the Occupational Safety and Health Act (산업안전보건법), the user company shall be deemed the employer (Articles 34 and 35); however, it contains no such provision regarding the application of the Immigration Control Act.
2. The gist of the facts charged in this case is that the Defendant, at Nonindicted Company 1 (hereinafter "Nonindicted Company 1"), which he operates, was introduced by Nonindicted 3 of Nonindicted Company 2 (hereinafter "Nonindicted Company 2"), a labor dispatch agency, to 40 foreigners (hereinafter "the foreign workers in this case") who did not lawfully hold a status of sojourn permitting engagement in profit-making activities, and thereby employed them.
3. Regarding this, the court below upheld the first-instance judgment, which had acquitted the Defendant, on the following grounds, among others: that Nonindicted Company 1 merely entered into a subcontract (도급계약) with Nonindicted Company 2, a worker dispatch agency, and was supplied with the foreign workers in this case by Nonindicted Company 2 as manpower needed for tasks such as packaging cosmetics containers; that it is difficult to view that the Defendant directly employed the foreign workers in this case; that the foreign workers in this case held the status of dispatched workers vis-à-vis Nonindicted Company 1; and that it is difficult to interpret "person who employs" under Article 94, Item 9 of the Immigration Control Act as including a user company that receives dispatched workers.
Examining the reasoning of the judgment below in light of the legal principles set forth above and related legal principles, as well as the evidence lawfully adopted by the court below, there is no error in the judgment below's determination, as alleged in the grounds of appeal, involving a misunderstanding of the legal principles concerning "employment" under the Immigration Control Act, the recognition of an implied employment relationship, or intent, nor any error exceeding the limits of free evaluation of evidence in violation of the rules of logic and experience.
4. Therefore, the appeal is dismissed, and this judgment is rendered by unanimous consent of the participating Justices, as stated in the Order.
Justice Kim Seon-su (Presiding Justice), Kwon Sun-il, Lee Ki-taek (Justice in charge), Park Jeong-hwa