외국인근로자의 사업장 변경제한과 강제노동금지의 원칙

Under the Act on the Employment, etc. of Foreign Workers, foreign workers who came to South Korea through the Employment Permit System are not permitted to change employers at their free will. Exceptions apply only when they establish that the situations, mainly on the side of the employers as stipulated in the law, prevent them from maintaining the employment, in which case foreign workers are allowed to change employers up to three times in principle. The restrictions on foreign worker's right to change employers have raised serious criticisms being claimed as a case of forced labor. The Constitutional Court of Korea had a chance to review the constitutionality of the issue in 2011, but its decision left the issue of forced labor unanswered by treating it merely as an issue of restrictions on their right to get a new job; the Court's decision ignored the problem that, because of the law that restricts their right to leave the employment, foreign workers become vulnerable to exploitation by the employers and are often compelled to involuntarily provide work and services in order not to lose their immigration status. After reviewing the international law on slavery and forced labor, especially in relation to migrant workers, and relevant constitutional provisions, this article argues that the Court should recognize the principle of forced labor prohibition under the Constitution and apply the principle in its constitutional review of the provisions. It further discusses how the Court in that case afforded limited protection for foreign workers in applying the right to free choice of employment and the right to decent labor conditions under the Korean Constitution.