Attorney Park Jae-hoon, Counsel for the plaintiff-appellant

3. The costs of lawsuit shall be borne by each person;

A. On June 15, 2017, the Plaintiff: (a) filed an application for recognition of eligibility for employment insurance with the Defendant on the ground that “the Plaintiff retired from office on May 31, 2017 due to the reduction of the number of employees required for management in Company B; (b) the Defendant recognized eligibility for employment insurance benefits of KRW 150 days for wage and KRW 50,000 for job-seeking benefits from June 22, 2017 to October 19, 2017, and was paid KRW 6,00,000 for job-seeking benefits from the Defendant.

B. However, on July 27, 2018, the Defendant filed an application for job-seeking benefits with the Plaintiff (hereinafter “Plaintiff”) from June 1, 2017 to July 31, 2017, for the foregoing job-seeking benefits as above, although the Plaintiff was employed as the head of the business headquarters of the Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”), and filed an application for the aforementioned job-seeking benefits on October 20, 2017 (hereinafter “Nonindicted Co., Ltd.”) through the training period from September 1, 2017 to October 20, 2017, which received job-seeking benefits during the above period by unlawful means, on the ground that “The Plaintiff received job-seeking benefits during the above period” (hereinafter “the instant disposition”). The Plaintiff filed a request for review with the Employment Insurance Examiner on August 1, 2018, but dismissed the Plaintiff’s request for review.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, 5, 6, 12, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

On June 1, 2017, the Plaintiff was only paid a corporate card for the purpose of compensating actual expenses, such as transportation expenses, within the limit of KRW 1,000,000 per month, without fixing the benefits due to friendship with the representative at the time of Nonparty Company’s employment. The Plaintiff was paid KRW 1,00,000 on September 30, 2017, and KRW 2,000,000 on October 25, 2017 by Nonparty Company, but this was paid in the form of temporary payment due to uncertainty of employment. Ultimately, the Defendant interpreted the concept of work arbitrarily even though there is a lack of evidence to prove that the Plaintiff had worked under the actual subordinate relationship with each of the above companies. Accordingly, the instant disposition is unlawful, and the amount of fraudulent payment should be revoked or reduced.

B. Determination

(1) As to the illegality of illegal receipt

(A) According to the main sentence of Article 61(1) and Article 62(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date on which he/she received, or attempted to receive, such unemployment benefits. The head of an employment security office may order the person who has received, or attempted to receive, job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits received, and in addition, an amount not exceeding the amount equivalent to the amount of job

Here, “false or other unlawful means” generally refers to any unlawful act committed by an ineligible person in order to conceal eligibility for benefits, such as pretending to receive benefits or having no eligibility for benefits, such as employment or income-generating, and refers to active and passive acts that may affect the recognition of eligibility for benefits and the decision-making on the payment of job-seeking benefits (see, e.g., Supreme Court Decision 2011Du7175, Jun. 13, 2013).

(B) As to the instant case, the following circumstances acknowledged by the purport of the entire statement and arguments on the evidence Nos. 7 through 14, namely, ① A recipient of unemployment should be present at and report to the Employment Security Office at the date designated by the head of the Employment Security Office within the scope of one week to four weeks from the date of reporting unemployment pursuant to Article 42 of the Employment Insurance Act (hereinafter “the date of unemployment recognition”); and this is uniformly aimed at preventing unjust payment of job-seeking benefits by directly confirming the job-seeking efforts and capabilities for reemployment, etc. of the details of job-seeking activities. ② However, the Plaintiff reported to the effect that job-seeking activities are conducted in the unemployment status five times in the unemployment recognition date even though Nonparty Company provided labor, considering the amount received from Nonparty Company and the frequency of receipt, the Plaintiff is deemed to have been aware of false report, ③ The Plaintiff’s receipt of money as the consideration for the provision of labor, and the Plaintiff’s receipt of job-seeking benefits by false or other unlawful means, shall be deemed to constitute “job-seeking benefits.”

(2) In light of the legislative purpose of the Employment Insurance Act with respect to the order of return, considering that: (a) the Plaintiff stated and reported false facts in the instant case; (b) the number of times the Plaintiff stated and reported; (c) the level of awareness; and (d) the employment insurance Act’s necessity of promoting the stability of workers’ livelihood and job-seeking by providing necessary benefits when they were out of work; and (d) the need for public interest, such as transparent and appropriate enforcement of job-seeking benefits; and (e) recovery of insurance financial loss through the return of illegally received insurance benefits, etc., appears to have more importance than the disadvantage the Plaintiff entered due to the instant order of return, it is difficult to deem that ordering the return of the entire amount to be considerably unfair

(3) As to the additional collection disposition

(A) In addition to the purport of the administrative agency’s discretion as to whether to impose additional collection, the form, method, and degree of unlawful act is very diverse; additional collection is a punitive disposition against the recipient of job-seeking benefits by false or other unlawful means; in the case of minor illegal receipt of benefits, if the additional collection is to be made in addition to the return of the benefits illegally received, it would be excessively harsh in light of the purpose of the Employment Insurance Act that contributes to the stabilization of workers’ livelihood and job-seeking activities and the economic and social development by facilitating job-seeking activities; and normally, in light of the fact that the return of illegally received insurance benefits can recover even if such unlawful payment of benefits, the exercise of the right to impose additional collection goes against the principle of proportionality as an additional collection disposition exceeding the bounds of discretionary power (see, e.g., Supreme Court Decision 2001Du2270, Sept. 5, 2003).

(B) In the instant case, the Plaintiff appears to have been unemployed on August 1, 2017, i.e., the following circumstances acknowledged by the foregoing evidence, i.e., (i) the Plaintiff appears to have been unemployed. In this case, the Plaintiff appears to have been able to receive job-seeking benefits; (ii) in the case of Nonparty Company ①, it was difficult for the Plaintiff to be aware of the Plaintiff as his employee, and (iii) the Plaintiff was paid KRW 1 million per month with the corporate card; (iv) the corporate card was limited to the use; (v) the Plaintiff was unable to use the corporate card as living expenses; and (v) the Plaintiff was given notice that the Plaintiff could have been paid job-seeking benefits for a period not exceeding three months after being employed on September 1, 2017; and (v) it is reasonable to deem that the Plaintiff was subject to additional collection in addition to the Plaintiff’s economic uncertainty that the Plaintiff would have lost its discretionary power to collect the insurance benefits in the instant case; and (v) it would have been reasonable to deem that the Plaintiff was subject to such additional collection.

Therefore, the restriction on the payment or the return order of the instant disposition was made on the foregoing premise, and is lawful, but the decision on additional collection is made on the foregoing premise, and thus, the decision on additional collection ought to be revoked illegally.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.