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[Recent Court Case 5] Using dispatched foreigners employed by another employer is not the type of employment which is prohibited under the Immigration Act.

2020.05.14

[Case No. Supreme Court decision 2018do3690 on May 14, 2020] 
 
This is a case in which a defendant was charged of hiring foreigners who do not have the visa for employment activities. The Supreme Court found that the defendant did not directly employ the foreigner but employed via dispatch of another employer and that this is not deemed the employment as provided under the Immigration Act. 
 
The defendant was introduced to 40 foreigners without the visa allowing for employment activities via a dispatch work agency, and the defendant hired them. 
 
The Supreme Court stated that the criminal law should be interpreted in a strict manner and not broadly outside the possible scope of the language in a way that is disadvantageous to the defendant in accordance with the principle of nulla poena sine lege (see Supreme Court Decision 2015do8335 dated December 21, 2017). The Act on the Protection, Etc. of Temporary Agency Workers defines “a person for whom a temporary agency worker works under a contract on temporary placement of workers” as "user company" under Article 2 Clause 4 and the “employer” as “user company” when applying certain provisions of the Labor Standards Act and Industrial Accident Compensation Insurance Act under Article 34 and 35. Meanwhile, there is no such provision as to the application of the Immigration Act. 
 
The Supreme Court held that the appellate court decision which affirmed the first instance court decision of acquittal on the defendant was without fault, and dismissed the appeal. The Supreme Court found no misinterpretation of the legal principles or violation of the empirical rule exceeding the limit of the principle of free evaluation of evidence. The Supreme Court considered that the company and the dispatch work agency had a subcontract; that the company was supplied foreign employees as the workforce required in the packaging of the products which does not constitute direct employment; that the foreign employees in this case had the status of dispatched employees; and that the employer under Article 94 Clause 9 does not include the employer of the dispatched employees.

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