I. Introduction

As of June 2016, there were more than 2 million foreigners staying in Korea for more than 3 months. This comprises 4% of all Koreans. If this increasing trend continues, long-term-staying foreigners will amount to 3 million people in 5 years, which will be 6% of the total population.
The reason for the increase in foreigners is because the Korean market requires more cheap foreign workers and foreign-trained professionals. This rapid increase in foreign workers has caused various social problems, such as illegal foreign workers, an increase in crimes by foreigners, rising unemployment for domestic Koreans, etc. However, as there are more economic benefits through the use of foreign workers than there are disadvantages caused by such problems, the number of foreign workers will continue to increase. Since a considerable number of foreign workers live side-by-side with domestic Koreans, it is necessary to seriously consider their human rights in terms of the various labor laws.
Foreign workers have moved to Korea for economic reasons, and even though they are not directly subject to the rights of citizens as guaranteed by the Constitution of the Republic of Korea, they are granted the right to pursue happiness and human rights. Hereunder I would like to review the international standards of foreign workers’ human rights, and then determine their labor law applications as shown in related decisions of the Constitutional Court and the rulings of the Supreme Court.

II. International Standards for the Human Rights of Foreign Workers

Article 6 of the Constitution stipulates, “Treaties duly concluded and promulgated under the Constitution and generally recognized rules of international law shall have the same force and effect of law as domestic laws of the Republic of Korea. Status of aliens shall be guaranteed in accordance with international laws and treaties.” Korea joined the United Nations (UN)¹⁾ on September 17, 1991, and on the following day joined the International Labor Organization (ILO)²⁾. Details regarding human rights are substantialized through declarations (constitutions) and agreements (covenants) of international organizations, and Korea, as a member country, is obligated to observe rules as regulated by these organizations.
The UN adopted the ‘Universal Declaration of Human Rights’ in the General Assembly in 1948, and established common standards of human rights that all people and all nations should adhere to, regardless of differences in politics, economy, culture and religion. The UN later adopted two covenants on human rights in 1966, which are the ‘International Covenant on Economic, Social and Cultural Rights (A Covenant or Social Rights Covenant)’ and the ‘International Covenant on Civil and Political Rights (B Covenant or Human Rights Covenant)³⁾. Additionally, the UN confirmed the international standards of human rights for second-class citizens such as women, infants, ethnic minorities, foreign workers, etc. The ILO includes the ‘ILO Constitution’ and the ‘Declaration Concerning the Aims and Purposes of the ILO (Declaration of Philadelphia).’⁴⁾
These declarations and Constitutions are ”generally recognized rules of international law” as regulated by Article 6 of the Constitution of Korea, which promote the general standards of human rights that all nations should satisfy.⁵⁾ However, it is necessary for it to be ratified in the National Assembly and substantialized in order to become valid under present law. Korea ratified 6 human rights covenants: ①the Social Rights Covenant and ②Universal Declaration of Human Rights (1990); ③the International Convention on the Elimination of All Forms of Racial Discrimination (1978); ④the Convention to Eliminate of All Forms of Discrimination against Women (1981); ⑤the Convention on the Rights of the Child (1990); and ⑥the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987). In addition, Korean ratified ⑦the Covenant Relating to the Status of Refugees (1992), and in the ILO covenants, ⑧the Covenant Concerning Discrimination in respect of Employment and Occupation (111st) (1998) and ⑨the Covenant Concerning Equality of Treatment for National and Foreign Workers as regards Workmen’s Compensation for Accidents (19th) (2001). However, Korea has not yet ratified some rules of international law regarding human rights such as the UN’s ‘International Convention on the Protection of the Rights of All Migrant Workers and the Members of Their Families’, enacted in and effective in 1990); the ILO’s ‘Migration for Employment Convention (97th), which became effective in 1952; the ‘Convention Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (97th), which became effective in 1978).

III. The Constitutional Court’s Decisions and the Supreme Court’s Rulings Regarding Foreign Workers

1. The Constitutional Court’s Decisions

(1) Legal status of foreign workers and the restrictions on their freedom of choice in the workplace
Foreign workers filed a constitutional complaint that Article 25 of the Act on Foreign Workers’ Employment, etc., violates freedom of choice in the workplace, as a change of workplace is permitted only three times in a three-year period.
As for the validity of this claim, the Constitutional Court admitted that foreign workers are entitled to the right to pursue happiness and the right to take legal action, as are all men, despite not being Korean citizens. However, the restrictions under the Employee Permit System are not a violation of their freedom to choose a workplace.⁶⁾
The Constitutional Court stipulated: “The freedom to choose a workplace under the freedom of occupation is not directly related to the rights of a citizen, but rather the rights of men, because the freedom to choose a workplace is closely related to human dignity and worth and the right to purse happiness. Therefore, it is justifiable that foreign workers should have the freedom to choose a workplace even though permission is limited. As long as the applicants received the work permit legitimately, entered Korea and maintained regular lives according to the justifiably permitted status, these applicants are entitled to basic human rights regarding the freedom to choose a workplace…..This article was designed to restrict foreign workers from changing their workplace frequently, in order to protect the opportunity for Korean employees to keep their employment, promote the effective management of foreign workers, and also to make sure of providing manpower, which will contribute to the balanced development of the national economy. Furthermore, this article guarantees the freedom of foreign workers to choose a workplace up to three times within three years in case of necessity for changing workplaces, and additionally gives them the opportunity to change their workplace for unavoidable circumstances stipulated in the presidential decree. Therefore, this article does not give unreasonable disadvantages that exceed the lawmakers’ discretion.”

(2) The industrial trainee system violates the Constitution

The Constitutional Court concluded that the industrial trainee system is unconstitutional because it violates equal rights, as trainees were excluded from the application of some parts of the Labor Standards Act due to their trainee status, even though trainees provide labor service in place of earning wages.⁷⁾ This decision abolished the industrial trainee system.
The Constitutional Court stipulated, “Even though industr