In today's era of international migration, with increased cross-border exchange of people and resources due to the development of transportation and communication infrastructure, as well as the spread of free market economies, the number of foreign workers has been on the rise. This is due to the need for low-cost unskilled labor and customized high-level professionals in the domestic labor market. However, the influx of foreign workers has led to issues such as illegal residency, increasing foreign crime, and erosion of the domestic labor market.
On the other hand, foreign workers come to Korea for economic reasons and may not have direct access to the rights guaranteed to citizens under the Korean Constitution. However, their pursuit of happiness and basic human rights must be protected. In this article, we will examine international standards for foreign workers' labor rights, as well as decisions made by the Constitutional Court and the Supreme Court regarding their legal status in the Korean labor market.


■ International Standards on Foreign Workers' Labor Rights Jung Bongsoo, 「Research on the Employment System and Remedies for Foreign Workers」, Ajou University Law Doctorate Thesis, 2017, p. 154.

The Korean Constitution, in Article 6, states that "treaties concluded and promulgated under the Constitution and generally recognized rules of international law shall have the same effect as domestic law. Foreigners shall enjoy human rights in Korea to the extent prescribed by international law and treaties." Korea joined the United Nations (UN) on September 17, 1991, and the International Labour Organization (ILO) the next day. Human rights issues are being fleshed out through declarations and agreements by these international organizations, and Korea is obliged to comply with the provisions set out by the UN and ILO as a member country.
The UN established common standards for human rights that all people and nations should achieve regardless of political, economic, cultural, or religious differences by adopting the Universal Declaration of Human Rights in 1948. Subsequently, the UN adopted two human rights covenants, the International
Covenant on Economic, Social and Cultural Rights (ICESCR or Covenant A) and the International Covenant on Civil and Political Rights (ICCPR or Covenant B), in 1966. In addition, the UN has established international human rights standards to protect the rights of vulnerable groups such as women, children, minorities, and foreign workers. The ILO's "Constitution of the International Labour Organization" and the "Philadelphia Declaration on the Aims and Purposes of the International Labour Organization" are also included.
These declarations and charters set forth the universal human rights standards that all countries must achieve as "generally recognized rules of international law" as defined by Article 6 of the Korean Constitution. However, to have legal force, they must be concretized into domestic law through the ratification process of the National Assembly.
Korea has ratified human rights agreements such as the International Covenant on Economic, Social and Cultural Rights (1990), the International Covenant on Civil and Political Rights (1990), the International Convention on the Elimination of All Forms of Racial Discrimination (1978), the Convention on the Elimination of All Forms of Discrimination against Women (1984), the Convention on the Rights of the Child (1990), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1995), and the Convention relating to the Status of Refugees (1992). In addition, the ILO's Discrimination (Employment and Occupation) Convention (1998) and the Compensation for Occupational Injuries Convention (2001) for equal treatment of domestic and foreign workers have been ratified. However, there is no clear international legal norm regarding labor rights of foreign workers, and international instruments only provide guidelines that each country must interpret and apply within their own domestic legal framework.

■ Constitutional Court Decision Regarding Foreign Workers
❍ Legal status of foreign workers and restrictions on freedom of job choice
Foreign worker H filed a constitutional appeal claiming that the limitation of three business location changes within three years, as stipulated in Article 25 of the Foreign Employment Act, infringed upon the constitutionally guaranteed freedom of job choice. The Constitutional Court acknowledged that although foreigners are not citizens, they have the right to pursue happiness as human beings and the right to appeal to the Constitution. However, the Court ruled that restricting the relocation of foreign workers within a certain range under the Employment Permit System does not violate their freedom of job choice.
The Court stated, "The freedom of job choice in question in this case should be viewed as a right of human beings, not just as a right of citizens, as it is closely related to human dignity, values, and the pursuit of happiness. Therefore, foreigners should also be allowed to enjoy limited freedom of job choice. As long as the claimants have received a valid employment permit, established and maintained certain living relationships in our society, and acquired the status of legitimate labor force, they should be recognized as subjects of the fundamental right to freedom of job choice. (omitted) This provision of the law was introduced to limit the indiscriminate relocation of foreign workers, protect employment opportunities for domestic workers, and ensure efficient employment management for small and medium-sized enterprises, thereby achieving a balanced development of the national economy. Furthermore, this provision allows foreign workers to change their place of work within a certain range up to three times during a three-year stay, and additional relocation is possible if there are unavoidable reasons specified by the Presidential Decree, so that the relocation of foreign workers can be possible within a certain range. Therefore, this provision of the law cannot be deemed clearly unreasonable beyond the discretion of the legislature." Constitutional complaint case (restriction of freedom of occupational choice): 2011. 9. 29. Constitutional Court 2007heonma1083.


❍ Constitutionality of the Industrial Internship Program
The Constitutional Court judged that, “Even when industrial trainees are in actual labor relations, such as providing de facto labor under the name of training and receiving supervision from the employer, and receiving money and goods in the name of allowances, major matters among the labor standards guaranteed by the Labor Standards Act are not enforced. It is difficult to find a rational basis for not applying only to industrial trainees. (Omitted) Excluding the application of some provisions of the Labor Standards Act to industrial trainees, who are actual workers at the workplace, unlike ordinary workers, is arbitrary discrimination. According to Article 5 of the Labor Standards Act and Article 4 of the 'United Nations International Covenant on Economic, Social and Cultural Rights', 'the right to enjoy equal working conditions for work of equal value' shall be restricted only by law. However, as this is stipulated in the administrative regulations, it also violates the principle of legal reservation.” Constitutional complaint case (industrial trainee system): 2007. 8. 30. Constitutional Court 2004 Heonma 670.


■ Supreme Court Precedent on Foreign Workers
❍ Status of Illegal Foreign Workers
"A, a Thai national, entered Korea on an industrial training (D-3) visa but suffered injuries such as bladder rupture during work in December 1992, exceeding his authorized stay. “A” applied for workers' compensation to the Korea Workers' Compensation and Welfare Service (KWCWS), but the KWCWS denied his claim, stating that A's employment contract with his employer as an illegal foreign worker was a violation of labor laws and thus neither the Labor Standards Act nor the Industrial Accident Compensation Insurance Act could be applied." In response, the Supreme Court ruled that while illegal stay is subject to enforcement, there must be labor law protection for factual labor already provided. Therefore, the Supreme Court's decision was significant as it recognized that illegal stay foreign workers are entitled to industrial accident compensation under the Industrial Accident Compensation Insurance Act. This was the first such case to be recognized. Supreme Court ruling 1995. 9. 15 94nu12067 Decision (Cancellation of a care denial order).

The Supreme Court stated that "while Article 15(1) of the Immigration Control Act regulates the activities that foreign nationals can engage in while residing in Korea, their status or qualifications to reside in Korea, and the Period of Residence, Article 15(2) also regulates foreign workers' employment restrictions.
Therefore, it cannot be said that the legislative intent was simply to crack down on illegal stay foreign nationals. These regulations have the purpose of efficiently achieving the stabilization of the domestic employment market and the effective management of labor force and maintenance of working conditions for Korean workers by regulating the employment qualifications of foreign nationals, as well as the legislative purpose of prohibiting the employment of foreign nationals without employment qualifications."
Furthermore, the Supreme Court stated that "this regulation only prohibits the factual act of employing foreign nationals without employment qualifications, and it is difficult to interpret it as prohibiting the legal effects of labor law such as the various rights of labor law according to the status of workers or the already formed labor relationship based on the labor provided by foreign nationals without employment qualifications." The Supreme Court thus recognized that even illegal stay foreign workers are entitled to compensation for work-related injuries under the Labor Standards Act.

❍ Three Labor Rights for Illegal Alien Workers
In the past, it was considered impossible under the current law for illegal foreign workers to exercise their third right to work. However, through recent court rulings, there is an important case in which the status of illegal immigrants as workers is reconfirmed not only in individual labor relations but also in collective labor-management relations. On May 3, 2005, foreign workers consisting of illegal residents in Seoul and Gyeonggi-do submitted a report on the establishment of a labor union to the Seoul Regional Labor Office, but it was rejected because they were illegal residents. Regarding this, there was a dispute in the court as to whether or not to recognize the labor union of illegal foreign workers, but on June 25, 2015, the Supreme Court's consensus ruling recognized the establishment of a labor union composed of illegal aliens. Supreme Court ruling 2015. 6. 25. 2007du4995 enclave ruling (cancellation of dismissal of labor union establishment report).

According to the Supreme Court, "a worker under the former Labor Union Act refers to a person who provides labor under a dependent relationship with another person and receives wages or other forms of remuneration for their living. This includes not only those who are realistically employed by a specific employer but also those who need to guarantee the three labor rights, including those who are temporarily unemployed or seeking employment. The Immigration Control Act's restriction on foreign employment is intended to prohibit the factual act of employing foreign workers without employment qualifications, not to prohibit the legal effects of labor-related rights based on the status of workers, such as labor relations law, even if they are illegal immigrants. Therefore, a person who provides labor under a dependent relationship with another person and receives wages or other forms of remuneration for their living is considered a worker under the Labor Union Act, and as long as the worker's status as a worker is recognized under the Labor Union Act, it cannot be said that the worker is not included in the scope of workers under the Labor Union Act, based on whether the worker is a foreigner or has employment qualifications."
In the recent trend of globalization, many advanced countries are experiencing social conflicts with an overflow of immigrants. However, advanced countries are promoting national interests through an immigration policy system that manages and controls foreign labor while protecting their domestic labor markets. The Korean government should also protect the labor rights of foreign workers while securing sufficient labor force by controlling their entry and exit into the country.