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

A. The Plaintiff is a company running the manufacturing and wholesale and retail business of automobile parts in the Young-si, Seocheon-gu, Busan, and C is the representative director of the Plaintiff.

B. After filing a report on the plan for employment maintenance measures (Suspension), the Plaintiff was provided with employment maintenance support payment for D from April 1, 2009 to June 2009 on three occasions from June 11, 2009 to July 22, 2009 (=65,743 won for April 2009 + 67,602 won for June 6, 2009 + 655,743 won for June 2009 + 675,743 won for June 2009 + 65,743 won for June 4, 2009). On July 4, 201, the Defendant denied the payment of subsidies for employment maintenance support payment for D from June 11, 209 to June 209 to KRW 1,98 (Suspension 209, 984, 1985, 1985, 209).

D. On March 5, 2012, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission on March 5, 2012, and the Central Administrative Appeals Commission revoked the part of the KRW 6,623,07 [2 times as KRW 65,743 won) + (67,602 won as KRW 65,743 won x 5 times as of February 21, 2012 and dismissed the remainder of the Plaintiff’s claim.

E. According to the above ruling on March 12, 2012, the Defendant reduced only the additionally collected amount among the dispositions listed in the above paragraph (c) and subsequently ordered the Plaintiff to return 1,989,088 won in total, and issued an order to additionally collect KRW 6,623,007 (two to five times the amount of unlawful receipt) (hereinafter referred to as “instant disposition,” in total, of the dispositions listed in the above paragraphs (c) and (e)).

F. On May 21, 2012, the Plaintiff filed an administrative litigation against the Defendant seeking revocation of the instant disposition (hereinafter referred to as “previous litigation”), and during the trial process, the Plaintiff did not receive employment subsidies by fraud or other improper means. However, the first instance court dismissed the Plaintiff’s claim on the ground that D was working for the Plaintiff as Australia during the period of employment maintenance (Seoul District Court 2012Guhap2379).

G. The plaintiff appealed against this, and in the appellate court, the defendant added the reason that "D was temporarily laid off to employ the insured by the employment maintenance measure in order to undergo the study training, which is an individual reason, and even if it cannot be included in the person subject to employment maintenance (the suspension of business), the plaintiff filed a report on the suspension of business and received the employment maintenance support payment in a false or unlawful manner." The second instance court dismissed the plaintiff's claim on the ground that the additional disposition is lawful (Seoul High Court 2012Nu36257), and the above judgment became final and conclusive as it is.

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

2. Determination

A. The plaintiff's assertion

1) Since the Constitutional Court made a decision of unconstitutionality as to Article 35(1) of the former Employment Insurance Act, which is the basis provision for the instant disposition, the instant disposition is also null and void.

2) Since D, who is the father of the representative director of the Plaintiff, is first determined as the person eligible for leave of absence due to the deterioration of the Plaintiff’s business management, D’s suspension of study to Australia is directly related to the aggravation of the Plaintiff’s business management, and it is not a temporary leave of absence due to personal reasons unrelated to employment maintenance. Therefore, the Defendant’s disposition of this case is based on gross mistake of facts, and its defect is obvious and null and void.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) On August 29, 2013, Article 35(1) of the former Employment Insurance Act (amended by Act No. 8429 of May 11, 2007, and amended by Act No. 9315 of December 31, 2008) provides that "a restriction on the provision of support" shall be imposed separately from "return of the subsidy already provided for the purpose of sanction against the unjust recipient" of the subsidy. The fact that the Constitutional Court rendered a simple decision of unconstitutionality on the ground that the restriction on the provision of support is comprehensively delegated to Presidential Decree without any provision in the Act, on the ground that it violates the principle of prohibition of comprehensive delegation (No. 201Hun-Ba390). However, the legal provision that served as the basis of the disposition of this case is not the above provision that was unconstitutional, but the amended provision is not the amended provision, and thus, the plaintiff's assertion is without merit.

Even if the Plaintiff’s assertion on family affairs is unconstitutional, the above amendment provision, which has become a basis for the decision of unconstitutionality, is the same as the above amendment provision of this case, and thus, the defect in order to make the disposition of this case null and void is serious, and it must be obvious. In general, the circumstance that the law violates the Constitution cannot be objectively apparent before the Constitutional Court renders a decision of unconstitutionality. Thus, the ground that the pertinent law, which is the basis for the administrative disposition, violates the Constitution before the Constitutional Court renders a decision of unconstitutionality, can only be the premise for a lawsuit seeking cancellation of the administrative disposition, and it does not necessarily constitute a ground for invalidation. Thus, the Plaintiff’s assertion does not appear to have any implication or reason (as seen earlier, it becomes final and conclusive upon the dismissal of the previous lawsuit as to the disposition of this case, and therefore, even if the decision of unconstitutionality has been rendered after the new decision of unconstitutionality, it does not affect the retroactive effect of the decision of unconstitutionality as to

2) If a judgment dismissing a request for cancellation of an administrative disposition against the second assertion becomes final and conclusive, the res judicata has effect on the legitimacy of the disposition, and as long as the disposition has become final and conclusive as illegal in the above judgment, it shall not be deemed null and void (see Supreme Court Decision 92Nu6891, Dec. 8, 1992). As seen earlier, even though the judgment dismissing the plaintiff's claim for cancellation of the disposition of this case was final and conclusive in the previous lawsuit, the plaintiff asserted that the disposition of this case was null and void, which occurred before the conclusion of pleadings at the fact-finding court of the case in question, and that the plaintiff asserted that the disposition of this case was void. As such, res judicata effect of the above final and conclusive judgment shall also affect the lawsuit of this case, the plaintiff's above assertion against this point is without merit, as

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Jong-chul

Judges Kim Gin-han

A person shall be appointed.

A person shall be appointed.