Open Decision Ledger · Criminal law
Dispatched foreign workers and 'employment' under the Immigration Act
Supreme Court, May 14, 2020, 2018Do3690 (judgment)
Case name: 출입국관리법위반
Official text on the National Law Information Center
Question
Where a using business employer concluded a labour dispatch contract or an equivalent contract, received from the dispatching firm a foreigner that firm employed, and set that foreigner to work for its own benefit, is that the 'employment' of a foreigner without a status permitting employment, prohibited by Article 94(ix) and Article 18(3) of the Immigration Act?
Holding
No. Reading the words of Article 18(1), 18(3) and Article 94(ix) of the Immigration Act, the rules on construing penal statutes, and the scheme of the Act on the Protection of Dispatched Workers, the Court held that 'employment' in Article 94(ix) and Article 18(3) means receiving labour services from a foreigner who has no status permitting employment and paying that foreigner remuneration for them. A using business employer that takes a foreigner already employed by a dispatching firm and sets him to work for its own benefit does not, on that reading, fall within the prohibition, and the statute does not deem the using business employer to be the employer for the purposes of the Immigration Act.
Summary of the holding, verbatim
출입국관리법 제94조 제9호, 제18조 제3항의 ‘고용’의 의미도 취업활동을 할 수 있는 체류자격을 가지지 않은 외국인으로부터 노무를 제공받고 이에 대하여 보수를 지급하는 행위를 말한다고 봄이 타당하다. 따라서 사용사업주가 근로자파견계약 또는 이에 준하는 계약을 체결하고 파견사업주로부터 그에게 고용된 외국인을 파견받아 자신을 위한 근로에 종사하게 하였더라도 이를 출입국관리법 제94조 제9호, 제18조 제3항이 금지하는 고용이라고 볼 수 없다.
Unofficial English translation
It is reasonable to view the meaning of 'employment' in Article 94, subparagraph 9 and Article 18 (3) of the Immigration Control Act as also referring to an act of receiving labor services from a foreign national who does not have a status of stay permitting employment activities and paying remuneration therefor. Therefore, even if a user company enters into a worker dispatch contract or a contract equivalent thereto and receives from a temporary work agency a foreign national employed by it and has such foreign national engage in work for the user company, this cannot be regarded as the employment prohibited by Article 94, subparagraph 9 and Article 18 (3) of the Immigration Control Act.
Disposition
Dismissed Stated in the decision
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Form of the test
Elements stated Stated in the decision
출입국관리법 제94조 제9호, 제18조 제3항의 ‘고용’의 의미도 취업활동을 할 수 있는 체류자격을 가지지 않은 외국인으로부터 노무를 제공받고 이에 대하여 보수를 지급하는 행위를 말한다고 봄이 타당하다.
Unofficial English translation
It is reasonable to view the meaning of 'employment' in Article 94, subparagraph 9 and Article 18 (3) of the Immigration Control Act as also referring to an act of receiving labor services from a foreign national who does not have a status of stay permitting employment activities and paying remuneration therefor.
Factors
- 출입국관리법 제18조 제1항, 제3항, 제94조 제9호의 문언
- 형벌법규의 해석 법리
- 파견근로자 보호 등에 관한 법률의 규율 내용 등에 비추어 보면
- 취업활동을 할 수 있는 체류자격을 가지지 않은 외국인으로부터 노무를 제공받고 이에 대하여 보수를 지급하는 행위를 말한다고 봄이 타당하다
- 사용사업주가 근로자파견계약 또는 이에 준하는 계약을 체결하고 파견사업주로부터 그에게 고용된 외국인을 파견받아 자신을 위한 근로에 종사하게 하였더라도
Unofficial English translation
• the wording of Article 18 (1) and (3) and Article 94, subparagraph 9 of the Immigration Control Act
• the legal principle of interpreting penal statutes
• in view of the regulatory content of the Act on the Protection, etc. of Temporary Agency Workers, etc.
• it is reasonable to view it as referring to an act of receiving labor services from a foreign national who does not have a status of stay permitting employment activities and paying remuneration therefor
• even if a user company enters into a worker dispatch contract or a contract equivalent thereto and receives from a temporary work agency a foreign national employed by it and has such foreign national engage in work for the user company,
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2017. 12. 21. 선고 2015도8335 전원합의체 판결 등 참조
Unofficial English translation
See, e.g., Supreme Court en banc Decision 2015Do8335 rendered December 21, 2017
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the dispatching firm is a shell that never actually employs the foreign workers, does the using business employer fall within the prohibition on 'employment'?
A later decision on a sham or abusive labour dispatch, where the dispatching firm has no genuine employment relationship with the workers, would require this entry to be read again. So would any amendment adding a deeming provision on using business employers to Article 18(3) or Article 94(ix) of the Immigration Act, or a decision finding an implied employment contract between the user firm and the foreign workers.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 6 (relation to precedent).
Axis 6 (Relation to precedent): Primary “Follows earlier decisions” vs Independent “Cannot be determined”
The primary reads the Court as following existing precedent, while the independent reading could not confirm any precedent relation from the text and left it unconfirmed. The difference lies in how each reader identified precedent from the text, not in the outcome.
대법원 2017. 12. 21. 선고 2015도8335 전원합의체 판결 등 참조Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul Central District Court, in its judgment of 1 February 2018 (2017No3705), left the first-instance acquittal in place. It held that Company 1 had concluded a sub-contract with the labour dispatch firm Company 2 and received from Company 2 the forty foreign workers only as the personnel needed to pack cosmetic containers and the like, so the defendant could not be said to have employed them directly. It also held that those workers stood in the position of dispatched workers towards Company 1, and that the term 'a person who employs' in Article 94(ix) could hardly be read to reach a using business employer who received them.
Supreme Court standard: The Supreme Court found no error. It held that, read against the legal principles it had set out, the provisions and the evidence lawfully admitted by the court below, the judgment below had not misunderstood the law on employment under the Immigration Act, on the recognition of an implied contract of employment or on mens rea, nor violated logic and experience so as to exceed the limits of free evaluation. The Justices unanimously dismissed the appeal.
Distinguishing conditions
- A case in which the user firm itself receives labour services from a foreigner without the right status and pays that foreigner the remuneration, which is the conduct the Court defined as employment.
- A case in which the arrangement is not a labour dispatch contract or an equivalent contract, so that the foreigner is not a person already employed by the dispatching firm and dispatched.
- A case in which another statute expressly deems the using business employer to be the employer, since the Court relied on the absence of such a deeming provision in the Immigration Act.
Record verification notes
Establish first the stay status of each foreigner and what work he did, since the prohibition bites only on a foreigner without a status permitting employment. Then separate the two contracts on the file, the sub-contract or dispatch contract between the firms and the position of the workers within each firm, and identify who paid the remuneration and under whose direction the work was done, because those facts decide whether the user firm itself received labour and paid for it. Finally check whether any statute deems a using business employer to be the employer for the offence charged, which the Immigration Act does not do.
From the official text
Points at issue
출입국관리법 제94조 제9호, 제18조 제3항에서 말하는 ‘고용’의 의미 / 사용사업주가 근로자파견계약 또는 이에 준하는 계약을 체결하고 파견사업주로부터 그에게 고용된 외국인을 파견받아 자신을 위한 근로에 종사하게 한 경우, 위 규정이 금지하는 ‘고용’에 해당하는지 여부(소극)
Unofficial English translation
Meaning of 'employment' as used in Article 94, subparagraph 9 and Article 18 (3) of the Immigration Control Act / Whether, where a user company enters into a worker dispatch contract or a contract equivalent thereto and receives from a temporary work agency a foreign national employed by it and has such foreign national engage in work for the user company, this falls under the 'employment' prohibited by the above provisions (negative)
Summary of the holding
출입국관리법 제18조 제1항, 제3항, 제94조 제9호의 문언, 형벌법규의 해석 법리, 파견근로자 보호 등에 관한 법률의 규율 내용 등에 비추어 보면, 출입국관리법 제94조 제9호, 제18조 제3항의 ‘고용’의 의미도 취업활동을 할 수 있는 체류자격을 가지지 않은 외국인으로부터 노무를 제공받고 이에 대하여 보수를 지급하는 행위를 말한다고 봄이 타당하다. 따라서 사용사업주가 근로자파견계약 또는 이에 준하는 계약을 체결하고 파견사업주로부터 그에게 고용된 외국인을 파견받아 자신을 위한 근로에 종사하게 하였더라도 이를 출입국관리법 제94조 제9호, 제18조 제3항이 금지하는 고용이라고 볼 수 없다.
Order
상고를 기각한다.
Unofficial English translation
The appeal is dismissed.
Provisions referred to
헌법 제12조 제1항, 형법 제1조 제1항, 출입국관리법 제18조 제1항, 제3항, 제94조 제9호, 파견근로자 보호 등에 관한 법률 제2조 제4호, 제34조, 제35조, 민법 제655조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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