2. The costs of the lawsuit are assessed against the defendant.

A. The Plaintiff is the preliminary officer on board who works on board as a mate after called up to support the work to transport goods and munitions in wartime, etc. in accordance with the Military Service Act or the work related thereto.

B. The Plaintiff shall work on board at a private maritime transport or fisheries enterprise that owns and manages a ship for three years from August 16, 201, which is the date of the first transfer to onboard ship reserve service. During the call period, the Plaintiff filed an application for job-seeking benefits under Article 40(1) of the Employment Insurance Act with the Defendant after the termination of an employment relationship with B, which falls under the said enterprise, and received a total of KRW 5,341,580 (hereinafter “the first job-seeking benefits”) (hereinafter “the second job-seeking benefits”) as applied on February 22, 2013, and the second job-seeking benefits as applied on January 29, 2015).

A person shall be appointed.

C. In the case of onboard ship reserve service, even if the Ministry of National Defense loses the insured status under the Employment Insurance Act, it shall be prohibited from commercial activities and concurrent offices pursuant to Articles 40-4 (7) and 40-8 (3) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 2720, Jun. 14, 2016; hereinafter “Enforcement Decree of the Military Service Act”) during the period of onboard ship reserve service (the last five years) until the cancellation of the call-up. Thus, on May 20, 2016, the Defendant: (a) presented the reasons that “on-the-job reserve service cannot meet the requirements under Article 40 (1) 2 and 4 of the Employment Insurance Act as a person who is not entitled to receive wages in return for the provision of labor to a third party; and (b) received a request for an examination of dismissal of job-seeking benefits by adding the remainder of KRW 909,790 and KRW 2,129,310,00.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 10, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The Plaintiff met the requirements of Article 40(1) of the Employment Insurance Act, and was paid job-seeking benefits lawfully.

2) The instant disposition in violation of the principle of statutory reservation was solely based on the authoritative interpretation and direction of the Ministry of National Defense and without any legal basis.

3) Violation of the principle of trust protection and the principle of self-regulation in administration

Considering that the Defendant has continuously received employment insurance premiums from the Plaintiff, and that, from October 28, 2007 to March 2016, when the onboard ship reserve system was implemented, the Defendant paid job-seeking benefits to onboard ship reserve personnel from October 28, 2007, the Plaintiff applied for and received job-seeking benefits according to the public official’s guidance by the Defendant, and that there has already been several years since the date of receiving job-seeking benefits, the instant disposition not only contravenes the principle of trust protection, but also contravenes the principle of administrative self-government.

4) Infringement of freedom of occupation

The Plaintiff had the freedom to work as a reserve position under the Military Service Act during the period of call-up, and thus, the Plaintiff’s claim for job-seeking benefits is justifiable, but the Defendant’s disposition ordering the return of the same is an infringement of the Plaintiff’s freedom to work.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) In light of the following circumstances, it is reasonable to view that onboard ship reserve personnel also acquired the right to receive job-seeking benefits in the event that they meet the requirements for supply and demand under the Employment Insurance Act, by comprehensively taking into account the facts acknowledged as above, Gap’s evidence No.

A) As for the Plaintiff, onboard ship reserve personnel, such as the Plaintiff, hold the status of performing the duty of military service in reserve status under the Military Service Act during the call-up period, and pay employment insurance premiums after being employed by private enterprises and being paid wages. As such, onboard ship reserve personnel contribute to the formation of financial resources for employment insurance by paying employment insurance premiums. However, it cannot be deemed justifiable to block access to insurance financial resources to job-seeking benefits itself while having the status of onboard ship reserve personnel.

B) Article 10 of the Employment Insurance Act and Article 3 of the Enforcement Decree of the same Act stipulate the eligibility for exclusion from the Employment Insurance Act, including public officials, and onboard ship reserve personnel are not included therein.

C) Article 40(1)2 and 40(1)4 of the Employment Insurance Act provides that “The Ministry of Employment and Labor’s established rules for job-seeking benefits shall stipulate that the intention and ability to work and actively endeavor to re-employment as a requirement for the supply of job-seeking benefits.” Article 2(1)4 of the Employment Insurance Act provides that “The intention to find employment and the ability to work refers to the mental, physical, and environmental ability to receive wages in return for the provision of labor” (Article 2(1)4). Under Article 40-4(7) of the Enforcement Decree of the Military Service Act, onboard ship reserve personnel are subject to certain restrictions on workplace and work (see Articles 40-2(1) and 40-4(1) of the Enforcement Decree of the Military Service Act) that may be employed as a result of imposing the obligation not to work on board or hold concurrent offices (see Article 40-2(1) and 40-4(1) of the Enforcement Decree of the Employment Insurance Act). In addition, onboard ship reserve personnel cannot be seen as having active intent and ability to work.

Furthermore, the duty of prohibition of profit-making and concurrent office of onboard ship reserve personnel is not a law, and its delegation is being carried out in Article 23-2(3) of the former Military Service Act (amended by Act No. 14183, May 29, 2016). It is more true in light of the purport of the principle of prohibition of comprehensive delegation as stipulated by the Constitution, to expand the scope of entitlement to job-seeking benefits under the Employment Insurance Act, which belongs to social fundamental rights, by limiting the freedom of occupation prescribed by the Enforcement Decree of the Military Service Act.

D) On-the-job reserve personnel are obliged to work onboard ship for three years during the maximum five-year period of onboard ship service. On-the-job reserve personnel are not automatically employed in other businesses or are paid by the State for the period of reemployment (which may be up to two years during which they do not actually work onboard ship). Thus, there may arise a threat of livelihood security and livelihood stability due to unemployment. Accordingly, the purport of the unemployment benefits system including job-seeking benefits (see Article 1 of the Employment Insurance Act) that seeks to stabilize the livelihood of workers by providing necessary benefits for their unemployment (see Article 1 of the Employment Insurance Act) may also be applicable to the case of an on-board reserve personnel.

E) The Ministry of Employment and Labor recognizes the eligibility for an onboard ship reserve serviceman with a moving company, such as the closure of business or reduction of the number of vessels, in a voluntary manner. However, there is a conflict between the Defendant’s assertion that there is no entitlement for receiving an onboard ship reserve serviceman solely on the sole ground that he/she holds the status of onboard ship reserve serviceman.

2) Therefore, the instant disposition, based on the premise that the Plaintiff failed to meet the requirements under Article 40(1)2 and 4 of the Employment Insurance Act on the ground that the Plaintiff was onboard ship reserve personnel, does not exist. Therefore, the instant disposition should be revoked on the ground that the Plaintiff’s remaining arguments were unlawful without having to further examine.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

Judges Excursion Ship Co.

Judges Kim Gung-ho

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.