외국인의 근로권에 대한 재해석 ― 헌법재판소 2021. 12. 23. 선고 2020헌마395 전원재판부 결정에 대한 비판적 검토를 중심으로 ―

In December 2021, Korean Constitutional Court upheld the constitutionality of Art. 25. Sec. 1 of the Employment of Foreign Workers Act, which restricts the reasons for changing workplace of foreign workers, and Articles 4 and 5 of the Ministry of Employment and Labor's Notification. It was considered that restricting the reason and number of times foreign worker’s right to change workplaces under the EPS(Employment Permit System) did not infringe on the freedom of occupation and the right to work under the constitution for policy reasons. However, seeking another job to reject the current poor working conditions, regardless of the worker’s national origin is essentially a matter of right to work. It is an essential legal and analytical task to closely examine the subjectivity and content of migrant workers' right to work, and reconstruct it on a rights-based approach. With this perspective in mind, this article develops discussions in the following order. First, after summarizing the main contents of the 2021 Constitutional Court's decision on Article 25 (1) of the Foreign Employment Act (II), the existing Constitutional Court's decision, centered on foreigners' ‘right to work’, as well as other court's decisions that were discussed, and describe their limitations and problems (III). Next, an analysis is conducted to clarify the nature and content of the right to work. In addition to various academic interpretations of working rights under the Korean Constitution, the content and interpretation of working rights referred to in international norms, including the UN Social Rights Treaty, are explained (IV). After that, based on the legal and theoretical understanding of the right to work, it is applied to the contents of the current Foreign Employment Act and foreign-related rulings, including the Constitutional Court's decision, and suggests the correct direction of interpretation of foreigners' right to work (V).