외국인 근로자에 대한 사업장변경 제한의 위헌성 검토 (Review of unconstitutionality of restrictions on workplace change for foreign workers)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 32권 / 1호 / 3 ~ 30페이지
· 저자명 : 노기호

초록

The provisions of Article 25 of the Foreign Workers' Employment Act, which limit the freedom of foreign workers to change workplace, are recognized as the subject of basic rights to foreign workers under the constitution. It can be said to be unconstitutional by violating the back.
In other words, the provisions of the Foreigner Employment Act can be said to limit the freedom of contract of foreign workers to terminate the previous labor contract and sign new labor contracts. It is seen that it violates the constitutional principle of proportionality (the principle of excess prohibition) by excessively restricting the freedom of the derived labor contract.
In addition, a legislative improvement is also requested in consideration of the elements of the unconstitutionality of the regulation on workplace change mentioned above. First, considering the fact that Germany switched to the labor permit system through the parallel period of the employment permit system and the work permit system, Korea also needs to ultimately switch to the work permit system through the parallel employment permit system and the work permit system. Since the restriction violates the principle of prohibition of excess, it is necessary to at least allow the freedom to change workplace within the same industry.
The second, when the employer unilaterally terminates the labor contract and reports this to the job security officer, the employee may take a remedy for unfair dismissal in the case of restrictions on the application period and permission period for workplace change. It is necessary to ensure that the period does not apply. Regarding the limit on the number of times foreign workers change workplace, at least foreign workers should be allowed to change workplace freely within the limit of the number of times.
Through these institutional and legislative improvements, foreign workers should enjoy the basic constitutional rights as workers who live on wages by providing work, as well as domestic workers, and ensure their dignity and the right to pursue happiness.

영어초록

The provisions of Article 25 of the Foreign Workers' Employment Act, which limit the freedom of foreign workers to change workplace, are recognized as the subject of basic rights to foreign workers under the constitution. It can be said to be unconstitutional by violating the back.
In other words, the provisions of the Foreigner Employment Act can be said to limit the freedom of contract of foreign workers to terminate the previous labor contract and sign new labor contracts. It is seen that it violates the constitutional principle of proportionality (the principle of excess prohibition) by excessively restricting the freedom of the derived labor contract.
In addition, a legislative improvement is also requested in consideration of the elements of the unconstitutionality of the regulation on workplace change mentioned above. First, considering the fact that Germany switched to the labor permit system through the parallel period of the employment permit system and the work permit system, Korea also needs to ultimately switch to the work permit system through the parallel employment permit system and the work permit system. Since the restriction violates the principle of prohibition of excess, it is necessary to at least allow the freedom to change workplace within the same industry.
The second, when the employer unilaterally terminates the labor contract and reports this to the job security officer, the employee may take a remedy for unfair dismissal in the case of restrictions on the application period and permission period for workplace change. It is necessary to ensure that the period does not apply. Regarding the limit on the number of times foreign workers change workplace, at least foreign workers should be allowed to change workplace freely within the limit of the number of times.
Through these institutional and legislative improvements, foreign workers should enjoy the basic constitutional rights as workers who live on wages by providing work, as well as domestic workers, and ensure their dignity and the right to pursue happiness.

참고자료

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