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(영문) 서울고등법원 2016.10.19. 선고 2016누43598 판결

고용보험피보험자격불인정처분취소

Cases

2016Nu43598 Disposition revoking non-recognition of insured status

Plaintiff Appellant

A

Defendant Elives

The Head of the Seoul Regional Employment and Labor Office Seoul Gangnam District Office

The first instance judgment

Seoul Administrative Court Decision 2015Gudan58273 decided April 14, 2016

Conclusion of Pleadings

September 7, 2016

Imposition of Judgment

October 19, 2016

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The judgment of the first instance is revoked. On July 14, 2014, the Defendant revoked the non-recognition of insured status with employment insurance against the Plaintiff.

Reasons

1. Quotation of the first instance judgment

A. The reasoning for the statement in this case is as follows, and the reasoning for the judgment of the court of first instance is identical to that for the reasons for the judgment of the court of first instance, except for the addition or dismissal of some contents as follows. Thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act

B. The part added or dried;

In the case of the first instance judgment, the 6th 6th 6th 6th son of the judgment of the court of first instance (hereinafter referred to as “the 6th 6th son”) and the 8th son were as follows. On March 13, 2012, a non-party company submitted a report on the loss of insured status to appoint a representative director on the ground of the 13th 8th 2009. Accordingly, the Plaintiff’s employment insurance was lost retroactively to December 8, 2009. The following is added to the 4th 5th son of the judgment of the first instance.

Unless there exist special circumstances, such as that the representative director of a corporation externally represents the company and internally performs the business affairs of the company, the representative director of the corporation is merely a formal and scenic purpose, and thus, he/she provided labor under specific, individual command and supervision from the actual manager and received remuneration from the actual manager (see, e.g., Supreme Court Decisions 2009Du1440, Aug. 20, 2009; 2012Da98720, May 29, 2014).

The following facts are added to the 4th 19th 19th son of the first instance judgment (as stated in the evidence No. 5 above, 'the case before the head office', 'the case of election for the representative director or officers whose term expires', 'the case of partial revision of the articles of incorporation', etc., which the plaintiff presides in the meeting as the chairperson, is recognized. In this regard, the plaintiff only cooperates with the plaintiff at the request of the non-party company, so it shall not be considered disadvantageous to the judgment of the worker nature of the plaintiff. However, the above circumstance is a meaningful factor to determine whether the plaintiff is a nominal representative director, so the above argument is rejected).

/ The following shall be added to the 6th written judgment of the first instance.

The Plaintiff asserts to the purport that the Defendant did not conduct a practical investigation against the Plaintiff in the course of the instant disposition and did not provide the Plaintiff with an opportunity to make a statement. However, according to the overall purport of the entries and arguments in the evidence Nos. 1 through 3, the Plaintiff submitted a report on the acquisition of insured status with employment insurance on June 27, 2014, and the Defendant requested the Plaintiff to submit additional materials to verify the employee status, which served as the basis for insured status with employment insurance, on or around July 1, 2014, and accordingly, conducted the instant disposition after examining various materials submitted by the Plaintiff, it cannot be deemed that there was any procedural error in the instant disposition.

2. Conclusion

The plaintiff's claim shall be dismissed on the ground that it is without merit. The judgment of the court of first instance is justifiable with this conclusion. Therefore, the plaintiff's appeal is dismissed on the ground that it is without merit

Judges

Mobilization by the presiding judge

Judges Yoon Jong-dae

Judge Lee Jae-soo