(영문) 청주지방법원 2017.5.18.선고 2016구합11723 판결

The Defendant’s order for return of employment maintenance support payment issued to the Plaintiff on September 19, 2016 and disposition for additional collection and restriction on payment is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff, a food manufacturing business operator, who mainly produces and sells canned foods, etc., conducted temporary retirement for 35 workers from December 11, 2015 to January 10, 2016 (hereinafter referred to as “first temporary retirement”), and 38 workers from February 1, 2016 to February 29, 2016 (hereinafter referred to as “second temporary retirement”) (hereinafter referred to as “second temporary retirement”).

B. As a result of examining whether the Plaintiff was unlawfully entitled to temporary retirement (C, D, E, F, G, and H) during the first temporary retirement period, the Defendant discovered that 37 persons subject to temporary retirement, other than B, were on February 27, 2016 and on February 28, 2016, 32,215,750 won (i.e., the first temporary retirement part + KRW 5,759,280 + the second temporary retirement part 26,456,470) were unlawfully subsidized on September 19, 2016 on the ground that 32,215,750 won were in attendance during the second temporary retirement period, and that 64,431,50 won were returned to the Plaintiff, and that 2,431,500 won was limited to the amount of subsidies paid from September 27, 2015 (i.e., the payment of subsidies from the Plaintiff up to 32,450 won).

[Ground of recognition] Facts without dispute, Gap evidence 2, 5, Eul evidence 4 and 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the following grounds.

① The Plaintiff cannot be deemed to have received employment maintenance support payment with intentional intent or other fraudulent means, inasmuch as six persons on temporary retirement play in his/her house during the first temporary retirement period and stay in his/her house for two hours, and only returned to his/her house during the second temporary retirement period, and had them attend work on February 27, 2016 and on January 27, 2016 and 28, which is prior to the temporary retirement period, and it was confirmed by the Ministry of Employment and Labor that it is legitimate by the Ministry of Employment and Labor.

② As long as it was confirmed that the Plaintiff’s implementation of the alternative leave period instead of having the Plaintiff attend the work for the second period from the Ministry of Employment and Labor during the second period of leave is legitimate, the part concerning the second period of leave is in violation of the principle of trust protection. Even if the Plaintiff received employment maintenance support payment, it is unlawful to consider the total amount of the subsidies for the pertinent month as an illegal receipt amount without considering the period of violation while taking into account the period of violation in the instant disposition, and is in violation of the principle

B. Relevant statutes

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

C. Determination

1) Determination as to the assertion

A) “False or other unlawful means” refers to any and all other unlawful acts committed by an employer who is not generally entitled to receive an order for return and a disciplinary measure for additional collection as stipulated under Article 35 of the Employment Insurance Act in order to conceal the eligibility to receive payment or the lack of eligibility to receive payment (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

B) In full view of the respective statements and arguments in the Evidence Nos. 3, 4, 6, and 7, the Plaintiff received a notice of employment maintenance measures (Evidence No. 6) from the Defendant prior to the implementation of the employment maintenance measures, to the end of the period of employment maintenance measures (the period from the first day of the employment maintenance measures to the last day). As such, the Plaintiff must report the reduction of the period of employment maintenance measures, and if there are changes in the number of eligible persons during the planned employment measures, the number of days of employment maintenance measures, the amount of paid wages, etc. during the planned employment measures, the Plaintiff shall report the changes in the employment maintenance measures in accordance with the employment maintenance measures plan by the day preceding the changes. If not, the Plaintiff received a notice of employment maintenance measures (Evidence No. 6) to the effect that “the return order, restriction on payment, additional collection, etc. may be complied with,” during the first temporary retirement period, the Plaintiff did not work daily for the new employees C, etc. subject to temporary retirement management management, G, and H pipes for 200 days after the Plaintiff’s work.

According to the above facts, the Plaintiff received the employment maintenance support payment as if the Plaintiff continued to work for one month during the period of employment maintenance measures, and continued to work for the relevant worker for one month during which the period of employment maintenance measures was not implemented. This constitutes a "false or other unlawful means affecting the Defendant's decision-making regarding the payment of employment maintenance support payment." Since it seems that the Plaintiff could have known such fact, it is legitimate that the Plaintiff issued the instant disposition on the ground that the Plaintiff received the employment maintenance support payment, and even if there was no intention on the part of the Plaintiff, it does not change even if there was no intention on the part of the Plaintiff as to the illegal payment. Therefore, this part of the Plaintiff's assertion is without merit.

2) Judgment on the argument

A) According to the statement in Gap evidence No. 4, the plaintiff's answer to the effect that "it is possible if both parties agree to change the three days prior to the temporary retirement from the call center's staff to the substitute work," can be acknowledged. However, the above fact alone is insufficient to recognize that the defendant's statement of public opinion was issued as to the fact that even if the defendant works during the period of temporary retirement corresponding to the employment maintenance measure, it does not constitute an illegal receipt of employment maintenance support payment if the period of temporary retirement is fixed, and there is no other evidence to acknowledge this otherwise. Therefore, this part of the plaintiff's assertion is without merit.

B) In full view of the provisions of Articles 21 and 35 of the Employment Insurance Act, and Articles 19, 20, and 20-2 of the Enforcement Decree of the same Act, with respect to the scope of the amount of illegal receipt, a business owner whose adjustment in employment is inevitable may take measures for employment maintenance, a business owner may take measures for employment maintenance, a plan for employment maintenance shall be formulated on a monthly basis, a monthly basis, and a plan for employment maintenance shall be calculated on a monthly basis for each target employee, and where a business owner violates a plan for employment maintenance measures,

In light of the contents and purport of the above provisions, if a person subject to temporary retirement for one month during the period of employment maintenance measures fails to continue to implement temporary retirement for one month even after the date he/she actually worked during the period of employment maintenance measures, the total amount of employment maintenance support payment for the relevant worker shall be deemed to have been illegally received. Therefore, it is legitimate to consider the total amount of employment maintenance support payment for the relevant month regardless of the period of violation as the amount of unfair receipt, and the plaintiff's assertion on the different premise

C) Furthermore, pursuant to Article 35(1) of the Employment Insurance Act, and Article 56(1) of the Enforcement Decree of the same Act, the Minister of Employment and Labor orders a person who received support from employment security projects by fraud or other improper means to return the amount of unlawful payment already received. As such, the disposition of ordering the return of employment subsidy constitutes a continuous act and thus, the Plaintiff’s assertion that the part of the return order during the instant disposition constitutes a discretionary act is without merit.

Meanwhile, according to Article 35(1) and (2) of the Employment Insurance Act, Article 56(2) of the Enforcement Decree of the same Act, and Article 78(1) of the Enforcement Rule of the same Act, the Minister of Employment and Labor may restrict the payment of subsidies within the scope of one year, and additionally collect an amount not exceeding five times the amount of illegal receipt in addition to an order to return. As such, a disposition to restrict payment and an additional collection is considered discretionary action, but ① the total amount of employment maintenance support payment for the relevant month regardless of the violation period should be considered as the amount of illegal receipt, ② the need to prevent insolvency of employment insurance finance, ② strict sanctions against illegal receipt of subsidies for the efficient and transparent operation of the support system, and the amount of subsidies illegally received is also considerable. Accordingly, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

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