外國人勤勞者 活用制度에 關한 立法論的 硏究

다국어 초록 (Multilingual Abstract)

As of Feb. 2003, the number of foreign workers in Korea accounted for about 3 % of the total wage earners. The demand for foreign workers is expected to largely increase due to population aging, higher educational attainment, etc. Also, there still remain some elements encouraging the inflow of foreign manpower from other developing countries in Asia. Therefore, the share of foreign workers in Korea's labor market will grow further in the future. In spite of this, Korea has yet to put in place laws and institutions allowing foreign workers to be legitimately used. Korea's policy towards foreign workers has relied heavily on an ambiguous and expedient system, called employment-oriented industrial trainee system. As most of the foreign workforce has been filled with illegal foreign workers due to the defects in this system, Korea's labor market for foreigners has almost collapsed. This expedient policy towards foreign workers has also been criticized at home and abroad for causing human rights infringement and various irregularities. In spite of this, bringing only partial and technical improvements to the system, Korea is still maintaining the same foreign workforce system. Such an easygoing attitude will further worsen structural problems with the current system. Now, we can no longer delay coming up with a new foreign workforce system.
Studying legislative challenges to the employment of foreign workers, I looked at foreign workforce systems in other major countries, related international regulations and universally accepted standards, all of which is described in Chapter 2. As a result, I found that most of the countries have a system allowing foreign workers to enter their countries and be employed legitimately. Among these countries, only Taiwan, Singapore and the U.S. have adopted an employment permit system. Under this system, foreign workers must make a labor contract before entering a receiving country. Which means that it is relatively easy to manage foreign workers under this system. On the other hand, some countries including Germany and France have adopted a labor permit system. Under this system, foreign workers can enter a country relatively freely and then obtain a labor permit to find a job. Accordingly, this system puts more emphasis on human rights protection for foreign workers. Meanwhile, in Japan, the trainee system and Nikkeijin(ethnic Japanese) system are provided simultaneously. Unlike Korea' industrial trainee system, Japan's trainee system is implemented only in the form of training without permitting employment. The Nikkeijin system whose application is limited to ethnic Japanese from South American countries, takes the form of a labor permit system.
In Chapter 2, I analyze foreign worker systems in other countries and related international standards and examine standards likely to help to address our legislative challenges. The results of the examination are as follows. First of all, in all of the countries in this study, matters on entry, departure and stay of foreign workers are handled by the immigration control authorities such as the Ministry of Justice, etc. according to immigration control laws, while matters on import and management of foreign workers are dealt with by the labor or employment authorities according to employment laws. Only in Japan, the labor authorities are in charge of importing and managing foreign workers and industrial trainees, though still according to immigration laws. In particular, in Taiwan, it is worth noting that the policy for foreign workers is determined at a meeting of labor, management and government presided over by the Ministry of Labor. Secondly, in the case of Germany, some programs under its employment permit system prior to 1973 and recent labor permit system are importing foreign workers through the signing of a memorandum of understanding. Thirdly, according to the ILO conventions and recommendations, the import of foreign workers should be handled by official agencies such as public employment service agencies, etc. Some programs in Germany provide an example where the labor authorities are exclusively in charge of importing foreign workers without the involvement of private agencies. Even in other countries, employment permission is controlled directly by public employment service agencies. Even though there are many cases where prospective employers or private employment service agencies are put in charge of recruiting, selecting and sending foreign workers, final permission for employment is usually handled directly by the labor authorities or public employment service agencies. Fourthly, the U.S. directly control the total number of foreign workers to be imported. Meanwhile, other countries control the number by limiting the total number for particular programs, defining the scope and conditions of imported foreign workers or putting a different upper limit to employment rate by occupation and company size. Fifthly, to protect employment of their native workers, countries have introduced a labor market test and give employment permits on the conditions that prospective employers have made earlier efforts to hire native workers. They require employers to pay contributions whose amount is equivalent to the difference between market and actual wages or to apply the principle of equal treatment to foreign workers. Sixthly, foreign workers with special skills are allowed to stay over a long term, whereas those with simple skills can stay only for 3-4 years. In addition, in countries adopting a labor permit system, foreign workers are relatively free to move from one workplace to another, while in those adopting an employment permit system, such mobility is strictly restricted. The ILO recommends that foreign workers who have stayed for more than 2 or 5 years should be able to freely transfer to other workplaces.
In Chapter 3, I examine Korea's foreign workforce system and related legal environments. In this study, the focus of my analysis is placed on simple-skilled foreign workers. Firstly, in 1991, Korea introduced the industrial trainee system for companies investing abroad. Under this system, companies investing in other countries or selling facilities overseas can bring in and train workers from other countries. This system puts an upper limit to the import of foreign workers by company size but there is no special restriction on type of occupation. Secondly, in 1993, the industrial trainee system involving recommending bodies was introduced. Under this system, four employers' organizations are entrusted by the Korean government to do the job of importing and managing foreign workers. This system targeted at small and medium companies is applied only to manufacturing, offshore fishery, construction, agricultural and livestock businesses. Thirdly, in 2000, the trainee employment system was introduced. This system allows foreigners to be employed as workers for two years after receiving training under the industrial trainee system involving recommending bodies. Finally, in 2002, the employment management system was introduced under which ethnic Koreans of foreign nationalities can, if invited by relatives in Korea, be employed in particular service business such as restaurants, etc.
Chapter 3 also provides an analysis of the legal status of foreign workers currently employed under the foreign workforce system in Korea. Foreigners employed under the trainee employment system are clearly granted the status of a worker. So are those employed under the employment management system excluding household workers. On the other hand, industrial trainees are granted the status of a trainee pursuant to the Immigration Control Act. But in reality, industrial trainees work much longer hours compared with native workers rather than receive training. In spite of this, Korea's administrative guidelines had not recognized industrial trainees as workers until they has changed the position so that industrial trainees can be protected by some provisions of the Labor Standards Act. In contrast, Korea's court rulings have clearly recognized foreign industrial trainees as workers and adhered to the position that they are fully covered by the Labor Standards Act. In this study, after making an analysis of the criteria used by the Labor Standards Act to determine the status of a foreign worker, I express the view that the Labor Standards Act is fully applicable.
In Chapter 4, I tries to evaluate Korea's foreign workforce system. The Korean government has allowed the import of foreign workers only in occupations requiring special skills and blocked the inflow of simple-skilled foreign workers. But in fact, the principle of banning the import of foreign workers for occupations requiring simple skills have started to crumble, since with the introduction of the industrial trainee system, foreign workers began to be imported under the name of training. In addition, the introduction of trainee employment system and employment management system implies that the formality of this principle has been abolished, as both systems legitimately recognize the existence of simple-skilled foreign workers. However, Korea's foreign workforce system with the industrial trainee system at its center still has structural problems. Such problems are attributed to continuous expansion of an expediently developed system. Besides, even new systems introduced to improve old one have been built on the foundation of the expedient system or very limited in its scope.
The structural problems with Korea's foreign industrial trainee system can be listed as follows. Firstly, the industrial trainee system is a system excluding foreign workers from application of labor laws and making them work long hours under the pretext of training. Such a deceptive system has been prepared by the government, used by companies and tolerated by society as a whole. In other words, it is a system making our society morally insensible. Secondly, with the intervention of private brokers in the process, the system has been tainted by various irregularities such as irregularities in the sending process, exploitation by middlemen, bribery, etc. In particular, the irregularities in the sending process have become a cause of long-term or permanent stay of foreign workers because they have increased sending costs and consequently encourage industrial trainees to overstay to recoup the costs. Thirdly, the industrial trainee system uses a point-scoring method to select companies entitled to hire foreign workers. Therefore, poor-performing and disadvantaged small companies to whom trainees are not allocated have no choice but to turn to illegal foreign workers. This has resulted in an unbelievable situation where 80% of the total foreign workers in Korea are illegal. In response, the government has taken such lukewarm measures as granting a grace period for departure 15 times, a period for voluntary departures, etc. Now, the problem of illegal foreign workers becomes so serious that it can no longer be neglected. Fourthly, the industrial trainee system provides no labor market test which makes it obligatory for employers' efforts to hire native workers in advance. Moreover, the system fails to cater the market's need because foreign workers are allocated regardless of the need of companies. Fifthly, the system has still not solved such problems as a combination of long working hours and low wages, human rights abuses including detention, violence, etc. The trainee employment system which was introduced to overcome these problems still have the same structural problems since it allows foreigners to be employed only after the completion of their training. The employment management system is actually ineffective because it strictly applies only to ethnic Koreans of foreign nationalities.
In Chapter 5, I discuss the future direction and legislative challenges of Korea's new employment system for foreign workers which will be capable of curing the identified problems. I confirms in this chapter that sweeping reform of the current system for foreign workers is inevitable and that the employment permit system should be adopted as a new employment system for foreign workers to solve the raised problems. As the industrial trainee system forming the basis of Korea's foreign workforce system has been heavily criticized, its microscopic details have been greatly improved. Such improvements include preventing permanent stay of foreign workers by limiting the maximum period of stay to three years and restricting transfer to other workplaces; requiring sending agencies to recommend foreign workers several times more than the actual number to be sent; providing a Korean language test and using computers to select foreign workers; and establishing protection measures fitted for the characteristics of foreign workforce such as wage claim guarantee insurance, industrial accident compensation insurance, etc. I accepted these technical issues as legislative challenges while examining the new employment system for foreign workers. By reviewing related international regulations, relevant examples in other countries and opinions from various circles, I searched for possible alternatives to solve structural and fundamental problems of the industrial trainee system and reflected them in the new system.
The contents of the new system can be summarized as follows. First of all, the government or a public organization should be made responsible for managing the new system. To do this, the governments of both sending and receiving countries should take a responsibility for importing foreign workers and control the import and management of foreign workers through the signing of a MOU. In addition, public organizations should be placed in charge of doing such administrative work as assistance in entry and departure, etc. Secondly, all the organizations involved in establishing and implementing policies for foreign workers, responsibility for which is scattered under the current system, should be unified. For this purpose, a deliberation committee on foreign workforce policy should be set up in the Ministry of Labor. Thirdly, labor laws should clearly apply to foreign workers and unreasonable discrimination against them should be removed. Fourthly, employment of foreign workers should be limited by type of business, type of occupation and company size, to areas where it is hard to hire native workers and at the same time their total employment should be thoroughly controlled. Fifthly, various measures should be enshrined in laws to secure employment opportunities for native workers. Sixthly, institutions should be designed to eradicate various irregularities. Seventhly, institutional devices should be established to thoroughly crack down on illegal stay by improving penal provisions of the Immigration Control Act and giving labor inspectors a right to investigate. Eighthly, foreigners and employers should be able to receive job-seeking and job-offering services, respectively, through an electronic network for job security and the market's function of enabling employers to pick their workers should be reinforced. Finally, long-term or permanent stay of foreign workers should not be caused.
There are things to be improved when the new system is introduced. When introducing the new employment system for foreign workers, we should consider whether or not to continuously maintain the industrial trainee system. Given Korea's responsibilities and duties among developing countries and in international society, the industrial trainee system itself is worth preserving. Therefore, it is desirable that management structures of the industrial trainee system is unified into the Ministry of Labor and the current employment-oriented trainee system is transformed into a pure training system. To move towards a pure training system, several improvement measures should be established such as restricting the proportion of on-the-job training and in principle, banning extended, holiday and night training. There is an argument that the industrial trainee system should be implemented along with the new employment permit-based system for foreign workers. This may be a practical compromise because complete abolishment of the current system maintained for more than 10 years could cause resistance from the vested interest groups and some side effects as well. But such a compromise can be accepted only when the current employment-oriented industrial trainee system is transformed into a pure training system.
In case the new system is introduced, one of the concerns will be how to deal with 290,000 illegal foreign workers in Korea. If Korea insufficiently equipped with infrastructures for immigration control at present tries to force more than 200,000 illegal foreigners to leave at one time, it will cause huge confusion. Furthermore, such a forced departure of foreign workers will leave a vacuum of industrial workforce in lots of small and medium companies. Given all this, the issue of illegal foreign workers is not likely to be solved under the current system, so addressing this issue through the new system could be proposed as an alternative. Accordingly, the new employment system for foreign workers should set certain criteria, and according to these criteria, illegal foreign workers needed for companies should be legalized through employment permission while remaining others should be strongly cracked down on by strengthening physical and human infrastructures for immigration control.
The employment management system needs to be integrated into the new employment system for foreign workers by easing current restrictions on age, type of business and scope of inviting relatives. In this process, the new employment system for foreign workers with employment permission at its center will be supplemented with a labor peiniit system. Because this study covers only the problems with the employment management system for ethnic Koreans of foreign nationalities subject to the Overseas Koreans Act, further study will be needed to make a deeper analysis.
With regard to the employment system for foreigners with special skills, related institutions should be improved in consideration of similar cases in other countries to enable the Ministry of Labor to take an active role in making policies on demand and supply of foreign workforce. However, this study mainly focused on simple-skilled foreign workers provides only a superficial and brief analysis of foreign workers with special skills. I hope that further research into this area will follow in the future.

목차 (Table of Contents)

• 목차 = ⅰ
• 제1장 서론 = 1
• 제1절 연구의 목적 = 1
• 제2절 연구의 범위 = 6
• 제2장 외국인근로자 활용제도의 국제비교 = 8
• 제1절 총설 = 8
• I. 외국인근로자 활용방법 = 8
• II. 외국인근로자에 대한 법적인 규제방법 = 10
• III. 외국인근로자에 대한 국제적인 규범 = 10
• 제2절 주요국에서의 외국인근로자 활용제도 = 13
• I. 雇傭許可中心型 國家 = 13
• II. 勞動許可中心型 國家 = 35
• 제3절 국제규범의 내용 = 61
• I. 선언적 규범 = 61
• II. 한국이 비준한 규범 = 63
• III. 한국이 비준하지 않은 규범 = 66
• 제4절 외국인근로자 활용에 관한 국제적 기준 = 71
• I. 기준 적용의 상대성과 국가별 특성 = 71
• II. 관리 및 운용에 있어서의 국제기준 = 73
• 제3장 한국의 외국인근로자활용제도와 법적환경 = 84
• 제1절 총설 = 84
• I. 외국인근로자 활용체계 = 84
• II. 외국인근로자 현황 = 85
• 제2절 외국인근로자 활용유형 = 86
• I. 일반적인 합법취업 = 86
• II. 외국인산업연수 및 연수취업제도 = 91
• III. 외국국적동포 = 116
• Ⅳ. 불법체류 외국인근로자 = 125
• 제3절 외국인근로자의 법적지위와 권리보장 = 127
• I. 외국인근로자의 근로자성 = 127
• II. 외국인근로자의 勤勞條件 保護 = 141
• III. 외국인근로자에 대한 사회보험법의 적용 = 146
• 제4장 현행 외국인근로자 활용제도의 평가 = 149
• 제1절 총설 = 149
• I. 제도의 정착과 한계 = 149
• II. 법체계 및 관리주체의 왜곡 = 154
• 제2절 산업연수제도의 문제점 = 157
• I. 民間利益團體의 介入과 非理發生 = 157
• II. 국외관리체계와 송출비리 = 158
• III. 국내 관리체계의 문제점 = 160
• Ⅳ. 劣惡한 勤勞條件과 人權侵害 = 163
• 제3절 불법체류 취업의 원인과 문제점 = 168
• I. 불법체류 취업의 원인 = 168
• II. 불법체류에 대한 제재의 미흡 = 170
• 제5장 외국인근로자 활용제도의 개선방안 = 172
• 제1절 총설 = 172
• I. 외국인근로자 활용의 필요성 = 172
• II. 기존제도의 한계 = 174
• III. 대안의 검토와 선택 = 176
• 제2절 외국인근로자 고용과 관리에 관한 입법방향 = 178
• I. 명칭, 입법목적 및 적용범위 = 178
• II. 정책의 결정과 관리체계 = 180
• III. 도입규모 · 업종 = 183
• Ⅳ. 송출국의 결정과 관리 = 187
• Ⅴ. 선발에서 도입까지의 절차와 내용 = 188
• Ⅵ. 외국인 근로자의 관리 = 213
• 제3절 외국인근로자 보호를 위한 법적 과제 = 214
• I. 滯留期間과 가족동반 = 214
• II. 근로조건의 보호 = 216
• III. 거주와 이전의 자유 = 218
• Ⅳ. 사회적인 보호 = 221
• Ⅴ. 불법체류 방지와 출국 지원 = 222
• 제4절 관련 제도 및 법령의 보완 = 227
• I. 기존 불법체류 외국인근로자의 합법화 = 227
• II. 외국국적동포 취업제도의 개선 = 229
• III. 전문 · 기술직 취업제도의 보완 = 233
• Ⅳ. 산업연수제도의 개선 = 234
• 제6장 결론 = 236
• 참고문헌 = 244
• ABSTRACT = 251