2017Gudan73245 Requests the payment of early employment allowances

A

The Seoul Regional Employment and Labor Agency Head of the Seoul Regional Labor Office

August 13, 2018

September 5, 2018

1. The plaintiff's claim is dismissed.

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

On March 25, 2017, the Defendant’s decision to pay early re-employment allowance to the Plaintiff was revoked.

1. Details of the disposition;

A. On February 1, 2016, the Plaintiff joined the Plaintiff Company B and retired from employment on February 2, 2016, and on February 22, 2016, upon applying for recognition of eligibility for employment insurance to the Defendant, the Plaintiff recognized the eligibility for benefits of KRW 180 days (from February 29, 2016 to March 6, 2016) and the daily benefit amount of KRW 43,416, and then filed an application for the first unemployment recognition with the Defendant on March 7, 2016.

B. At the time of filing an application for the first unemployment recognition, the Plaintiff came to know that the Defendant would be able to start self-business with C Co., Ltd. (hereinafter referred to as “C”) from March 7, 2016. However, the service contract between the Plaintiff and C, which the Plaintiff submitted to the Defendant as an explanatory material, was written as “before March 7, 2016, 2016, the date of commencing the provision of services, which was alleged by the Plaintiff, was earlier than March 2, 2016.” Accordingly, in order to determine the period of unemployment recognition of the Plaintiff, the Defendant demanded the Plaintiff to submit to the Plaintiff materials verifying that the start date of self-business was “ March 7, 2016,” as alleged by the Plaintiff. On March 10, 2016, the Plaintiff submitted to the Defendant as the service contract made between the Plaintiff and C, stating that the starting date of provision of services was less than KRW 30,000,370,000,3636.

D. On March 15, 2017, the Plaintiff filed an application for the payment of early re-employment allowance with the Defendant, asserting that the Plaintiff, who run self-employed business for more than 12 months from March 7, 2016, satisfied the requirements for the payment of early re-employment allowance under Article 64 of the Employment Insurance Act (hereinafter “Act”) and Article 84(1)2 of the Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree”).

C. On March 25, 2017, the Defendant rendered a decision on the site pay for early re-employment allowance on the ground that there was no evidence to acknowledge that the Plaintiff continued to engage in self-employment for at least 12 months, and that the Plaintiff was not recognized as unemployed by reporting the preparatory activities for self-employment as a re-employment. (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed a request for review with an employment insurance examiner. However, around May 16, 2017, a request for review was dismissed. On May 22, 2017, the Employment Insurance Review Committee filed a request for reexamination, but was dismissed on June 21, 2017.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 1 through 7, 9, 11, and 12

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as an eligible recipient, has been engaged in self-employment business for at least 12 months from March 7, 2016 after obtaining the recognition of unemployment, satisfies the requirements for the payment of early re-employment allowances prescribed under Article 64 of the Act and Article 84(1)2 of the Enforcement Decree. The instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Requirements for payment of early re-employment allowances and burden of proof

Article 64 (1) of the Act provides that "the early re-employment allowance shall be paid to an eligible recipient who runs a for-profit business on his/her own and meets the criteria prescribed by Presidential Decree." Article 84 (1) of the Enforcement Decree of the Act provides that "the guidelines prescribed by Presidential Decree" in the part other than each subparagraph of Article 84 (1) of the Act refers to any of the following cases where an eligible recipient has left for at least 1/2 of the fixed payment days under Article 50 of the Act as of the day immediately before the date immediately preceding the date of re-employment after the waiting period under Article 49 of the Act and re-employment," and subparagraph 2 of Article 64 provides that "if an eligible recipient continues to run a business for at least 12 months, he/she shall report the preparation activities for running the relevant business as a business for re-employment during the relevant benefit period pursuant to Article 44

According to the language, form, system, etc. of the above relevant statutes, an eligible recipient who intends to receive early re-employment allowance shall meet each of the following requirements (hereinafter referred to as "requirements for early re-employment allowance") and the burden of proving the requirements for the payment of early re-employment allowance should be deemed to exist in the applicant who seeks early re-employment allowance.

(1) The business shall commence its business after the waiting period under Article 49 of the Act remains at least 1/2 of the fixed benefit payment days under Article 50 of the Act as of the day immediately preceding the date of reemployment (the part other than each subparagraph of Article 84 (1) of the Enforcement Decree).

(3) Pursuant to Article 44 (2) of the Act, the preparation activities for running the relevant business shall be reported as re-employment activities during the relevant benefit period and is recognized as unemployed (the latter part of Article 84 (1) 2 of the Enforcement Decree).

2) Since the Defendant, who satisfies the requirements for the payment of early re-employment allowances, issued the instant disposition on the ground that the Plaintiff failed to meet the requirements of Articles 2 and 3, the Plaintiff must prove that the Plaintiff satisfied the requirements of Articles 2 and 3.

First, comprehensively taking into account the health stand for the requirements of subparagraph 2 (which has continued to operate a self-employed business for more than 12 months), and the purport of the entire argument in subparagraph 5, the Plaintiff provided inspection services to C for about eight months from March 7, 2016 to November 15, 2016, and received business income, but it is clearly recognized that the period of self-employed business of the Plaintiff falls short of 12 months even if it is based on the above recognition, and there is no other evidence to support that the Plaintiff continued to operate a self-employed business for more than 12 months. Accordingly, the Plaintiff did not meet the requirements for the payment of early re-employment allowance without further review on the requirements of subparagraph 3.

As the Plaintiff did not know that early re-employment allowances can be paid from the Defendant, the Plaintiff asserts that early re-employment allowances should be paid regardless of whether it satisfies the requirements of Article 2. However, there is no legal basis on the Defendant’s duty to inform the Plaintiff of the above fact (referring to the legal duty that incurs the effect of deeming the requirements of Article 2 as having been met if the Defendant breached such duty). Therefore, the Plaintiff’s assertion premised on the Defendant’s duty to guide is without merit.

Therefore, the instant disposition that did not pay early re-employment allowance to the Plaintiff is lawful.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kang Jae-soo

A person shall be appointed.

A person shall be appointed.