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 1, 30.3 to 5 years, which is the date of the first transfer to onboard ship reserve service. During the call period, the Plaintiff applied for job-seeking benefits under Article 40(1) of the Employment Insurance Act to the Defendant after the termination of an employment relationship with B, which falls under the said enterprise, as indicated in the following table, and received total amount of KRW 9,390,000 from the Defendant.

A person shall be appointed.

B. In the case of onboard ship reserve service, even if the Ministry of National Defense loses the insured status under the Employment Insurance Act, the period of onboard ship reserve service (the last five years) is the period of onboard ship service (amended by Presidential Decree No. 2720, Jun. 14, 2016; hereinafter “Enforcement Decree of the Military Service Act”) and Article 40-4(7) and Article 40-8(3) of the former Enforcement Decree of the Military Service Act prohibit for profit-making activities and concurrent offices. Accordingly, on May 16, 2016, the Defendant issued a decision to return the job-seeking benefits amounting to the above 9,390,000 won (hereinafter “the instant disposition”) to the Plaintiff, who provided labor to a third party, cannot meet the requirements under Article 40(1)2 and 4 of the Employment Insurance Act as a person who is entitled to receive wages in return for the provision of labor outside of the onboard ship reserve service. This decision was dismissed on June 16, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 12, Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was duly paid job-seeking benefits from the Defendant as a person meeting the requirements under each subparagraph of Article 40(1) of the Employment Insurance Act, and thus, the Defendant’s disposition that the Plaintiff returned was unlawful.

B. Relevant statutes

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

C. Determination

In full view of the aforementioned evidence, the Ministry of National Defense of this Court, and the fact-finding results and the purport of the entire arguments against the Ministry of Employment and Labor, it is reasonable to view that job-seeking benefits are recognized in cases where onboard ship reserve personnel meet the requirements for supply and demand under the Employment Insurance Act. Thus, the instant disposition that the Plaintiff deemed that onboard ship reserve personnel failed to meet the requirements under Article 40(1)2 and 4 of the Employment Insurance Act and that the Plaintiff returned job-seeking benefits amounting to KRW 9,390,000 on the sole ground of the reason that the Plaintiff was on onboard ship reserve personnel was unlawful (as long as the Plaintiff’s assertion regarding the fulfillment of

(1) In the event that onboard ship reserve personnel, such as the Plaintiff, are in the position of performing the duty of military service in reserve status under the Military Service Act during the call-up period, and at the same time, are employed by private enterprises and are paid employment insurance premiums after being employed by them to work 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, and the failure of recognizing the right to receive job-seeking benefits per se during the status of onboard ship reserve personnel is justifiable.

(2) 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.

(3) Article 40(1)2 and 40(1)4 of the Employment Insurance Act provides that job-seeking benefits shall be paid in consideration of the intent and ability to work and the active efforts to re-employment. According to Article 2(1)4 of the Employment Insurance Act, an intention to work refers to active intent to find a job, ability to work, and mental, physical, and environmental ability to receive wages in consideration of the provision of labor. On the other hand, onboard ship reserve personnel are subject to certain restrictions in business and duties (see Articles 40(1) and 40-4(1) of the Enforcement Decree of the Military Service Act) that may be employed as a result of the burden of prohibition of work on board, other than work on board, or concurrent office, pursuant to Article 40-4(7) of the Enforcement Decree of the Employment Insurance Act. However, on the other hand, onboard ship reserve personnel have the intent and ability to receive wages in consideration of the provision of labor to an employer within the scope of work and work on board, and on the other hand, onboard ship reserve personnel cannot be considered as having been transferred.

Even with its holding, activities for reemployment, such as job-seeking, vocational ability development training, participation in vocational guidance, can be actively conducted (see Article 2(1)7 of the unemployment recognition and reemployment assistance Regulations). Therefore, it cannot be readily concluded that onboard ship reserve personnel have no intent or ability to work or actively efforts for reemployment is not recognized solely on the ground that they are onboard ship reserve personnel

Furthermore, the duty of prohibition of profit-making and concurrent office of onboard ship reserve personnel is not a law (the delegation is made under Article 23(2)3 of the former Military Service Act (amended by Act No. 14183, May 29, 2016)). Furthermore, in light of the purport of the principle of prohibition of comprehensive delegation, it is more true 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 in light of the legislative reservation and the purport of the principle of prohibition of comprehensive delegation.

(4) On-the-job reserve personnel are obliged to work onboard ships for three (3) years during the maximum five (5) years of onboard ship service. On-the-job reserve personnel are not automatically employed by other companies or are paid by the State for re-employment activities (which may be up to two (2) years of the period during which they are actually unable to work onboard ships). Accordingly, there may arise a threat of livelihood security and livelihood stability due to unemployment.

The purport of the unemployment benefits system including job-seeking benefits (see Article 1 of the Employment Insurance Act) may also be applied to onboard ship reserve personnel, including job-seeking benefits that provide workers with necessary benefits for their livelihood when they are unemployed.

(5) The Ministry of Employment and Labor recognizes the eligibility for benefits to the reserve service, such as the closure of business, reduction of the number of ships, etc., in a non-voluntary manner, against the Defendant’s assertion that there is no entitlement for benefits on the sole basis of the fact that he/she holds the status of onboard ship reserve service (the inquiry inquiry inquiry inquiry at January 24, 2017).

3. Conclusion

Therefore, the claim of this case is justified, and it is so decided as per Disposition.

Judges 00 Efficacy

Judge Choi Jin-hun

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.

A person shall be appointed.

A person shall be appointed.