2. The plaintiff's remaining claims are dismissed.

3. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A. The Plaintiff is operating a art education institute in Gangnam-gu Seoul Metropolitan Government.

B. The Plaintiff requested the Defendant to pay the new employment promotion subsidy from March 31, 2009 to July 7, 2009, for the reason that he newly employed C as the insured through the intermediation of employment security offices, etc., and received the payment of the new employment promotion subsidy of KRW 2,250,000 in total from the Defendant.

A person shall be appointed.

C. On January 26, 2010, the Defendant did not need to receive referrals from the employment security office, etc. in employment of C on September 1, 2008, because it conducted a job interview with C through its own route. Nevertheless, the Plaintiff had C register job seeking with the Worknet corresponding to the employment security office, etc. for the purpose of receiving the new employment promotion incentive, employed C in the form of receiving referrals from the employment security office, etc. 3 months after the unemployment period of C, and received new employment promotion incentive by requesting the Defendant to receive new employment promotion incentive. The Plaintiff received new employment promotion incentive 1 on the ground that it received 35(1) and (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; Presidential Decree No. 25151, Dec. 15, 2009) (amended by Presidential Decree No. 2010, Apr. 16, 2015).

[Ground of recognition] Unsatisfy, Gap evidence 1 (including virtual number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff employed C by the referral of the employment security office, etc.

The Plaintiff, without a plan to employ C, has decided to employ C after the Defendant decided to pay the new employment promotion subsidy under the absence of a plan to employ C, and in case of not receiving the new employment promotion subsidy, he shall be deemed to have employed C by the arrangement of employment security offices, etc.

(2) Article 78(1) of the former Enforcement Rule violates the principle of excessive prohibition under the Constitution.

Inasmuch as a new employment promotion incentive is planned to be paid 12 times a year, a business owner who has applied for the incentive even once consecutively applies for the incentive, thereby illegally receiving the incentive or increasing the amount additionally collected according to the number of times he/she has applied for the incentive cannot be a proper means to achieve the purpose of preventing unjust demand and supply. Furthermore, the amount additionally collected is more than double to five times the amount of illegal demand and payment. Accordingly, Article 78(1) of the former Enforcement Rule violates the principle of excessive prohibition under the Constitution.

(3) In light of the circumstances leading up to the Plaintiff’s claim for the subsidy for the promotion of new employment, the collection order of additional collection among the instant disposition is excessive.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On September 1, 2008, the Plaintiff considered a job interview with C on September 1, 2008. During that process, the Plaintiff was able to be employed by C as a person eligible for the new employment promotion subsidy.

(2) On September 1, 2008, C registered the first job seeking on the Worknet using a computer located in the Plaintiff’s workplace, and thereafter registered the second job seeking using a computer located in the Plaintiff’s workplace on December 4, 2008.

(3) On September 4, 2008, the Plaintiff registered the first job offer to the Worknet, and registered the second job offer on December 5, 2008. At the time, the e-mail address of the recruitment officer was entered into C’s e-mail address.

(4) On December 5, 2008, the Plaintiff requested mediation to the Defendant, and received C from the Defendant on December 8, 2008.

(5) The Plaintiff employed the Plaintiff, 12, 17, and C on 208.

(6) On March 27, 2009, C and the Plaintiff’s representative director D stated the employment channel as “Internet (Worknet) job offers and job seeking at the time of the Defendant’s interview and investigation,” and “the first interview day on December 10, 2008.”

[Ground of recognition] Unsatisfy, entry of Eul 3 evidence (including paper numbers), the purport of the whole pleadings

D. Determination

(1) As to the assertion that the plaintiff employed C by the referral of the employment security office, etc.

(A) There is no evidence supporting the Plaintiff’s assertion that the Defendant employed C after the Defendant decided to pay the new employment promotion subsidy. Rather, as seen earlier, the Plaintiff applied for the new employment promotion subsidy to the Defendant from March 31, 2009 after employing C on December 17, 2008.

(B) According to the above facts, despite the Plaintiff’s decision to employ C at the time of job interview and did not need to receive the referral of an employment proposal agency, the Plaintiff, in collusion with C to receive the new employment promotion subsidy, requested the registration of job seeking, job offer registration, and referral, and made a false statement of employment route and initial interview at the time of interview and investigation. The Plaintiff’s above act constitutes a fraudulent act for which the Plaintiff received the new employment promotion subsidy by fraud or other improper means. This also applies to the Plaintiff’s absence of the intent to employ C in a case where the Plaintiff is unable to receive the new employment promotion subsidy.

(2) As to the assertion that Article 78(1) of the former Enforcement Rule violates the constitutional principle of excessive prohibition

Even if a new employment promotion incentive is planned to be paid 12 times every year, it can be expected that the business owner who unlawfully received a new employment promotion incentive or who applied for a new employment promotion incentive gives up his/her application for a new employment promotion incentive at the intermediate stage by taking a sanction on the amount additionally collected. Therefore, it is an appropriate means to unlawfully receive a subsidy or increase the amount additionally collected according to the number of times he/she applied for a subsidy.

In addition, in light of the fact that it seems necessary to impose heavy sanctions to prevent illegal receipt of new employment promotion incentives, and that the amount of additional collection twice or five times the amount of illegal receipt is not a fixed amount, but a fixed maximum amount, the standard itself cannot be deemed as excessive.

Therefore, Article 78 (1) of the former Enforcement Rule does not violate the principle of excessive prohibition under the Constitution.

(3) As to the assertion that an order to collect additional collection is excessive among the instant disposition

Article 35(2) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) provides that “The Plaintiff may collect an amount equivalent to or less than the amount that was paid by fraud or other improper means,” but Article 35(2) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; Act No. 1039, Jun. 4, 2010; Act No. 10339) provides that “The Plaintiff may collect an amount not more than five times the amount that was paid by fraud or other improper means to be additionally collected at the time of the Plaintiff’s application for new employment promotion from the number of times he/she applied for new employment promotion, which would have been illegally paid or applied for new employment promotion from the number of times he/she applied for new employment promotion to be additionally collected at least twice the amount that he/she would have been subject to new employment promotion, which would have been unfairly collected at the time when the Plaintiff applied for new employment promotion.”

(4) The theory of lawsuit

Therefore, the order of return of 2,250,000 won of the amount of new employment promotion subsidy in the instant disposition is lawful, and the order of collection of 9,450,000 won additionally collected is unlawful.

3. Conclusion

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

Judges Calopics

Judges Kim Jae-soo

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.