[2] In a case where a disposition of imposition of money, which is discretionary as to whether to issue a disposition and the degree of disposition, is an abuse of discretionary authority, whether the court may revoke only the part exceeding the reasonable part as determined by the appropriate degree of disposition (negative)

[3] The purport of the Employment Insurance Act stipulating that the amount exceeding one times the amount of job-seeking benefits received by false or other unlawful means may be recovered through an order for return and additional collection

[4] Whether the part of Article 104 and Article 105 of the Enforcement Rule of the Employment Insurance Act on the ground of a disposition that violates the obligation to report employment is in itself against the Constitution or law (negative)

1. Case summary and key issue

A. According to the reasoning of the lower judgment, the following circumstances are revealed.

1) The Plaintiff worked in Seongdong-gu Seoul ( Address 1 omitted) and was dismissed on September 20, 2017 and resigned from employment.

2) On October 25, 2017, the Plaintiff recognized eligibility for job-seeking benefits pursuant to Article 43 of the former Employment Insurance Act (amended by Act No. 16557, Aug. 27, 2019; hereinafter “Employment Insurance Act”) from the Defendant, and received unemployment recognition and job-seeking benefits under Article 44 of the Employment Insurance Act on five occasions. Of them, the subject of dispute in this case is the secondary portion of unemployment recognition and job-seeking benefits.

3) On December 5, 2017, the Plaintiff was subject to the second unemployment recognition for the period from October 26, 2017 to December 5, 2017, and was paid KRW 1,909,940 for the said period on December 6, 2017. However, the Plaintiff was employed in the “(trade name omitted)” located in the Jung-gu Incheon Metropolitan City ( Address 2 omitted) during the period subject to the second unemployment recognition, and was paid KRW 400,000 in return for providing labor (hereinafter “instant employment”).

4) On December 20, 2017, the Defendant: (a) identified the instant employment status through the Defendant’s internal computer network “an inquiry about the details of duplicate benefits”; and (b) pursuant to Article 47(2) of the Employment Insurance Act, conducted an investigation by the Plaintiff; and (c) ordered the Plaintiff to return full amount of KRW 1,909,940 for the second job-seeking benefits pursuant to Article 62(1) of the Employment Insurance Act on the ground that the Plaintiff was paid job-seeking benefits by fraud or other wrongful means (hereinafter “instant return order”).

B. The key issue of the instant case is whether there is a procedural defect or a deviation or abuse of discretionary power in the instant return order.

2. Plaintiff’s ground of appeal

A. The lower court determined that there is no evidence that the Defendant forced the Plaintiff to prepare a written confirmation that is disadvantageous to the Plaintiff when investigating whether the Defendant was employed prior to the instant order for return, and that the provisions of the Criminal Procedure Act regarding the duty to notify the right to remain silent in investigation proceedings do not apply mutatis mutandis to the procedure of administrative investigation pursuant to Article 47(2) of

B. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles on administrative investigation.

3. As to the Defendant’s ground of appeal

A. (1) Whether a punitive administrative disposition deviatess from or abused the scope of discretion should be determined by comparing and comparing the content of the offense, which is the reason for the disposition, and the degree of violation, the degree of violation, the necessity of the public interest to be achieved by the disposition, the disadvantage of an individual, and various circumstances therefrom, etc. Even if the criteria for such punitive administrative disposition are prescribed in the form of Ordinance, it is nothing more than that prescribed in the administrative agency’s internal rules for business affairs, and thus has no effect to the public or the court externally. Therefore, the legality of the disposition should be determined not only in accordance with the criteria for disposition but also in accordance with the contents and purport of the relevant statutes. Therefore, even if the criteria for disposition cannot be immediately deemed legitimate, unless the criteria for disposition do not conform with the Constitution or laws, or unless there are reasonable grounds to deem that the application of the criteria is considerably unreasonable in light of the content of the offense, and the purport of the relevant statutes, which is the reason for the disposition, it should not be readily determined that the disposition in accordance with such criteria deviates from the scope of discretion or abuse discretionary power (see, etc.

2) In a case where a disposition of imposition of money, which is recognized as discretionary as to whether to take the disposition and the degree of the disposition, is a deviation or abuse of discretionary authority, the court can only determine whether to deviate from or abuse of discretionary authority, and it cannot determine whether to what extent the discretionary authority is reasonable, and thus, the court should revoke the entire decision, and the court cannot only revoke the part exceeding the reasonable part (see, e.g., Supreme Court Decision 2017Du62600, Oct. 31, 2019).

B. For the following reasons, the lower court determined that the part exceeding the above amount in the instant return order was unlawful since it was reasonable to order only the return of the portion of KRW 400,00,00, which is the actual income earned by the Defendant’s employment among the second job-seeking benefits that the Defendant paid to the Plaintiff.

1) As a matter of principle, the employment insurance, which is the source of job-seeking benefits, is appropriated for the employment insurance premium paid by the employee who is an employment insurance policyholder and the business owner, respectively. In addition, Article 40(1) of the Employment Insurance Act requires a certain contribution from the employee by stipulating that “the insured unit period for the 18-month period prior to the date of severance from employment of the insured (the total insured worker) shall be at least 180 days in total,” as a requirement

2) Of the 41st 41-day period subject to unemployment recognition, the instant employment period is only 4 days. If the Plaintiff applied for job-seeking benefits only for the remaining 37 days that the Defendant was not actually employed, it may be paid.

3) Ordering the Plaintiff to return the full amount of job-seeking benefits received during the period subject to recognition of unemployment was retroactively deprived of the financial basis necessary for living.

C. However, the lower court’s determination is difficult to accept for the following reasons.

1) Article 62(1) of the Employment Insurance Act provides that “The head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means to fully or partially return the total amount of job-seeking benefits received, and in addition, he/she may collect an amount not exceeding the amount equivalent to the amount of job-seeking benefits received by such fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor.” To clearly distinguish “all or any part of all job-seeking benefits” subject to an order to return and “job-seeking benefits received by fraud or other improper means,” and “the amount of job-seeking benefits received by such fraudulent or other improper means,” which is subject to additional collection, from which “the amount of job-seeking benefits received by such fraudulent or other improper means,” the final amount may be recovered twice through the order to return and additional collection.” The purport of the Employment Insurance Act stipulating that the amount exceeding one time the amount of job-seeking benefits received by the illegal recipient may also be recovered through the order to return and additional collection.”

2) Article 104 of the Enforcement Rule of the Employment Insurance Act provides that “The person who has received job-seeking benefits by fraudulent or other illegal means shall be ordered to return all the job-seeking benefits paid” under subparagraph 1 and subparagraph 2 of Article 80 of the Decree shall only order the person who has received job-seeking benefits (limited to one fraudulent act) to return job-seeking benefits recognized as such reason: Provided, That Article 80 subparag. 1 of the Decree provides that daily workers under subparagraph 6 of Article 2 of the Decree have provided their labor during the period for which they intend to obtain unemployment, but the difference between the number of days reported and those actually recognized during that period shall be 3 days or less, regardless of the number of unlawful acts, and Article 80 subparag. 1 of the Decree provides that “the person who has received job-seeking benefits by fraudulent or other illegal means shall return the amount of job-seeking benefits already recognized as one of those who have received job-seeking benefits by not later than 00 days prior to such unlawful acts” and Article 80 subparag. 2 of the Enforcement Decree of the Employment Insurance Act provides that “the person shall return the job-seeking benefits already have been subject to voluntary report.”

Articles 104 and 105 of the Enforcement Rule of the Employment Insurance Act provide that “the full payment of job-seeking benefits received in excess of the actual benefit derived from unlawful acts,” or “the payment of the amount received in excess of the period subject to the Employment Insurance Act,” and thus, does not externally bind citizens or courts. However, the fact that the amount exceeding one times the amount of job-seeking benefits received by unlawful or other unlawful means can be recovered through an order of return and additional collection is already stipulated under Article 62(1) of the Employment Insurance Act. In addition, Article 104 Subparag. 3 of the Enforcement Rule of the Employment Insurance Act provides that only where an illegal act is reported before an investigation is commenced, the actual benefit gained by unlawful acts shall be considered as the object of the order of return.” In other cases, it is difficult to view that the legislative purpose of the Employment Insurance Act’s provision is in violation of the Enforcement Rule of the Employment Insurance Act’s duty of return or its detailed provision that reflects the legislative purpose of the aforementioned order of return and demand as the object of the order of return.

3) In addition, taking account of the following circumstances revealed by the record, it is difficult to deem that the instant return order in accordance with the standards set forth in Article 104 Subparag. 2 of the Enforcement Rule of the Employment Insurance Act is considerably unfair in light of the content of the act of violation and the purport of the relevant statutes.

A) Article 47(1) of the Employment Insurance Act provides that “If an eligible recipient of job-seeking benefits has been employed during the period subject to the verification of unemployment, he/she shall report the fact to the head of the Employment Security Office.” On November 14, 2017, prior to the date of the second application for the verification of unemployment, the Plaintiff was well aware that the Defendant was liable to report employment by submitting a written oath stating that “if an eligible recipient obtains income through employment, he/she shall immediately report the fact.” Nevertheless, on December 5, 2017, the Plaintiff, upon preparing and submitting the second application for the verification of unemployment, by deceiving the Defendant on the method of stating “not having any “work fact” in the verification column of unemployment during the period subject to the verification of unemployment, and thereafter, the Plaintiff did not report the employment of this case to the Defendant thereafter, and the fact of employment of this case was revealed only after the Defendant’s additional investigation.

B) In accordance with Article 12(2)2 of the “Rules on the Promotion of Unemployment and the Assistance to Re-employment” (Rules of the Ministry of Employment and Labor No. 119, Jan. 9, 2017), the Defendant first designated the date of application for the second unemployment recognition as of October 22, 2017 from October 26, 2017, the date following the date of the first unemployment recognition, which falls under 28 days from October 26, 2017, and announced the Plaintiff. However, the Plaintiff applied for the second unemployment recognition as of December 5, 2017, the second unemployment recognition period increased by 41 days “from October 26, 2017 to December 5, 2017.”

C) According to Article 62(1) of the Employment Insurance Act, the Defendant has the discretion to collect additionally the amount of job-seeking benefits paid to the Plaintiff in addition to the order to return the “job-seeking benefits paid”. In addition, Article 105(2)2 of the Enforcement Rule of the Employment Insurance Act provides that a person who has failed to report employment may be exempted from additional collection only once with respect to fraudulent acts, but even in accordance with the business process standard, additional collection is not necessarily required. Nevertheless, the Defendant issued an order to return KRW 1,909,940 to the Plaintiff only by applying the main sentence of Article 104 subparag. 2 of the Enforcement Rule of the Employment Insurance Act, and did not separately impose additional collection on the amount of job-seeking benefits, etc. that the Plaintiff received in relation to the violation of the obligation to report employment in favor of the Plaintiff.

D. Ultimately, the part exceeding KRW 400,00,00, which is the actual income gained by the employment of this case, among the return order of this case, is judged to have been abused from or abused discretion, and only that part is revoked, the court below erred by misapprehending the legal principles on partial revocation of a disposition imposing money, which is recognized as discretionary, which affected the

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Noh Jeong-hee (Presiding Justice)