불법체류자의 고용관계에 대한 통제 ― 유럽연합의 사용자제재지침을 참조하여 ―

It is no secret that workers in an irregular state have a vulnerable relationship with employers, leaving those workers defenseless when they are exposed to human rights violence, industrial accidents, diseases, and criminal damage. If law enforcement and sanctions are not tough under the framework, the hiring of illegal foreign residents is an irresistible option for employers struggling to meet the balance of payments. The study aims therefore to explore effective measures in response to a recent upsurge in illegal residence of migrants who have entered Korea through the Employment Permit System. Korea deals with the issue in terms of maintaining order with a focus of regulations on illegal foreign residents. In comparison, Europe imposes various strict sanctions on employers hiring irregulars. It is because European countries view those employers as beneficiaries drawing illicit gains from the unlawful relationship with migrants and associate this issue with the evasion of tax and the circumvention of the public benefits charges including social security contributions. With respect to sanctions on employers of irregular labor, however, the current law in Korea controls a small range of lawbreakers and simple violations, and penalties are low too. In addition, authorities execute it depending on practical situations. In reality, all that illegal employees have to face, though detected, is expulsion without criminal punishment. Moreover, even if they voluntarily return home, they have no guarantee of being allowed back in Korea. This serves as a pull factor and enforcement alone is far from enough to combat undocumented migrant labor. Therefore the national policy should now shift its focus from illegal residents to employers and toughen regulations in question so as to curb the fundamental motivation of unlawful residence - the prospect of undeclared migrant workers lending a job. In this sense, it is worth to note EU Employer Sanctions Directive (Sanktionsrichtlinie). Tackling illegal residence is a matter of the law enforcement and the will of authorities on the one hand, and on the other a matter of the structure of the Employment Permit System (EPS) itself. The fundamental problem with the EPS is that it does not levy any burden on or control employers’ unjust gains. Employers are immune to the Beneficiary Pays Principle. There is also little evidence to support the discourse about the impact of such illegal relations on the labor market. So priority should be on establishing the infrastructure of studies, statistics, and analysis before formulating an appropriate policy to regulate illegal employment for public good. And the import of migrants should be always examined from the perspective of the national economy as a whole and not limiting the issue to a migration policy.