외국인근로자의 사업장 변경의 자유 관련 헌법재판소 결정에 대한 비판적 고찰

Abstract

There have been views on the improvement legislation of change of business or place of business under the Act on the Employment of Foreign Workers since the enactment of this provision. In the long run, there were proposals to expand the scope of recognition of the labor permit system in foreign employment policies, and to freely recognize business or workplace changes for foreign workers who have stayed for more than two years since the beginning of entry. In 2021, the Republic of Korea ratified No. 29 on the prohibition of forced labor among the ILO Fundamental Conventions and took effect on April 20, 2022. This changed normative context legislatively requests the improvement of the workplace change system. Nevertheless, the government is expanding the restrictions on workplace changes to regional restrictions. This is not irrelevant to the Constitutional Court’s presentation of legislative discretion as a standard for examining basic foreign rights through decisions related to the change of workplace of foreign workers. The Constitutional Court is not a legislator, and it should fulfill the Constitutional Court’s calling to protect the Constitution while complying with the principle of separation of powers and respecting the authority of the legislator. However, respecting legislators’ legislative rights should not go beyond the Constitutional Court’s essential calling to guarantee basic human rights through constitutional trials to protect existing legislation at the expense of the socially disadvantaged. From this point of view, the Constitutional Court’s consistent adoption of legislative discretionary screening as a criterion for screening freedom of choice, a right to freedom of occupation, must be changed.