South Korean Labor Law and Foreign Workers' Rights

South Korean Labor Law and Foreign Workers' Rights

South Korean labor law recognizes the fundamental rights of foreign workers within the scope of these rights being different from those guaranteed to Korean citizens. The country has experienced a rapid increase in labor costs and a labor shortage in the 3D jobs of small- and medium-sized enterprises (SMEs) since the mid-1980s. In response, Korea began importing foreign workers through the Industrial Trainee System in 1993, although these workers initially had limited labor law protections.

Conflict between Purpose and Rights

The purpose of the Foreign Worker Employment Act in 2003 was primarily to address the labor shortage in the 3D jobs of SMEs, without providing extensive labor law protection for foreign workers. However, upon entering the country and engaging in work activities, foreign workers acquire resident status and should be protected under the country's constitution.

Evolution of Foreign Workers' Rights

Pre-2003 Period

During the pre-2003 era, foreign workers were not treated as laborers but rather as trainees under the Industrial Trainee System. In cases where an industrial trainee was injured and applied for compensation, the Supreme Court recognized their right to medical treatment under the Industrial Accident Compensation Act, establishing precedence for similar incidents. The lack of labor law protection led to human rights violations, prompting changes after 2003.

Post-2003 Period

With the enactment of the Foreign Worker Employment Act in 2003, the country introduced the Employment Permit System for non-professional foreign workers (E-9 visa) and visiting workers (H-2 visa). This system aimed at facilitating the supply of manpower and balancing national development. Despite its primary objective not being focused on labor law protection, the act recognizes the necessity of respecting the human rights of foreign workers in accordance with the Constitution.

Legal Developments

Since 2003, various developments have taken place in relation to foreign workers' rights. In 2011, the Constitutional Court declared the Labor Ministry Guidelines concerning the protection and management of foreign workers, known as "A Guide to the Protection and Management of Foreign Workers," as a violation of the Constitution. Also in 2011, the Constitutional Court recognized the basic constitutional rights of foreign workers.

Impact of Supreme Court Rulings

Two significant rulings by the Supreme Court have further clarified the rights of foreign workers. The first ruling stipulated that the Immigration Control Act aims to monitor illegal stays of foreigners to protect and regulate employment eligibility, while still respecting legal rights achieved by delivering work over time. The second ruling confirmed that when evaluating worker status, the court recognizes the illegal foreign worker's status through practical standards instead of solely formal content. These rulings have positively impacted the recognition and payment of work-related accident and severance pay cases for illegal foreign workers.