(영문) 창원지방법원 2015.11.24.선고 2015구합1012 판결

A. On October 4, 2013, when the Plaintiff was employed in the drywon Factory, the Plaintiff applied for recognition of eligibility for employment insurance to the Defendant on the ground that he/she left the position on October 30, 2013, and recognized eligibility for benefits of KRW 180,40,000 for the fixed benefit payment day, and KRW 2,040,000 for 51 days from November 11, 2013 to December 31, 2013. (B) The Plaintiff was paid job-seeking benefits to the Defendant on July 4, 2014, and the Plaintiff was dismissed on the ground that he/she was employed as an advisor on January 1, 2014 (hereinafter referred to as “B”), but it was difficult to view that he/she was subject to the Employment Insurance Act’s application for re-employment as an employee on the ground that he/she was employed on at least six months thereafter, and that he/she was dismissed on the ground that he/she was employed on the job-based relationship.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 1, 2, 3, 6, 7, and 8, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On January 1, 2014, the Plaintiff entered into a labor contract with B on January 1, 2014, and provided labor to B for more than six months thereafter, which constitutes “re-employment in a stable occupation” under Article 64(1) of the Employment Insurance Act, and the Defendant is obligated to pay early re-employment allowances to the Plaintiff. Therefore, the instant disposition taken on a different premise is unlawful.

B. Relevant legislation

It is as shown in the attached Form.

C. Determination

1) Article 64(1) of the Employment Insurance Act provides that an eligible recipient shall pay early re-employment allowances if he/she is re-employed at a stable occupation and meets the criteria prescribed by Presidential Decree. According to Article 84(1)1 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25022, Dec. 24, 2013; hereinafter the same), “standards prescribed by Presidential Decree” under Article 64(1) of the Employment Insurance Act refers to a case where an eligible recipient is employed for at least 30 days after the waiting period under Article 49 of the Employment Insurance Act and is re-employed for at least six consecutive months as of the day immediately before the date of re-employment.

2) In full view of the following circumstances, it is reasonable to view that the Plaintiff was employed in B and worked for at least six months, and that it constitutes "re-employment in a stable job provided for in Article 64(1) of the Employment Insurance Act."

The Defendant’s disposition of this case, which was made on a different premise, is unlawful.

A) The purpose of early re-employment allowance is to minimize the period of job-seeking and encourage stable re-employment by paying a certain amount of money equivalent to the unpaid part of the fixed benefit payment days to an eligible recipient, regardless of whether the eligible recipient is re-employed or self-employed, prior to being fully paid job-seeking benefits (see, e.g., Supreme Court Decision 2009Du19892, Dec. 8, 201). “If an eligible recipient has been employed for 6 months or longer” under Article 84(1)1 of the former Enforcement Decree of the Employment Insurance Act as delegated by Article 64(1) of the Employment Insurance Act, the term “where an eligible recipient has been re-employed in a stable occupation” is to specify “where an eligible recipient has been employed for 6 months or longer,” and it is reasonable to interpret the term “where an eligible recipient has been employed in a stable occupation” under the same paragraph.

B) After concluding an employment contract with B, the Plaintiff was in charge of production technology advice and technical advice on overseas branch offices. At each time when the company is requested, the Plaintiff provided labor in the form of providing labor through hosting and seminars with employees. The Plaintiff was subject to specific and direct direction and supervision by the representative director B on the support of contact technology and the establishment of countermeasures against defects (B appears to have prepared an employment contract in the existing form because it had not employed technical advisers prior to the Plaintiff).

C) The Plaintiff appears to have received KRW 2.5 million each month from B as an advisory fee after concluding an employment contract, and it is difficult to view that the above amount is fixed according to the standards set by B, and barring any special circumstance, the nature of wage, which is the remuneration for work, is denied.

D) In light of the fact that the Plaintiff did not engage in the regular business of B but provided advice 2 to 3 times a month, that the Plaintiff did not obtain the insured status of the 4th insurance, including employment insurance, that it did not obtain the employment income tax, and that it paid business income tax, not the wage and salary tax, the Defendant asserted that the Plaintiff constitutes a person who is not employed in B but engaged in a profit-making business. However, it cannot be deemed that the “employment” stipulated in Article 64(1) of the Employment Insurance Act is limited to those having the nature of employment stipulated in Article 655 of the Civil Act. ② The content of the labor contract is freely determined between the parties, so it cannot be deemed that the Plaintiff provided labor only when it is freely determined between the parties, ③ the fact that the Plaintiff could not be deemed to have provided labor, and the fact that the delay in purchasing the 4th insurance or deduction of the Plaintiff’s business income tax from the Plaintiff’s wage cannot be ruled out (B’s wage withheld from the Plaintiff’s wage).

E) The Defendant asserts that the Plaintiff cannot be deemed to have worked continuously for at least six months in view of the Plaintiff’s acquisition of the insured status of employment insurance in Namyang-gu Co., Ltd. (hereinafter “Namyang-gu”) from February 1, 2014 to April 30, 2014. However, even if the Plaintiff provided labor in Namyang-gu during the above period, it may be deemed that it constitutes a ground against the Rules of Employment in B, etc., as seen earlier, the Plaintiff is not a full-time employee; the Plaintiff is not a full-time employee; the Plaintiff is not a full-time employee; the Plaintiff’s work provided in Nam-gu is not a full-time employee; and the details of the Plaintiff’s payment of wages on April 1, 2014 can not be readily concluded solely based on the circumstance asserted by the Defendant that the labor relationship between the Plaintiff and the Plaintiff was interrupted during the period from February 1, 2014 to April 30, 2014.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.