(영문) 울산지방법원 2012.4.18. 선고 2011구합2617 판결

The Defendant’s order to return KRW 4,800,000 granted to the Plaintiff on September 16, 2010 and the decision to additionally collect KRW 19,924,00 shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff, a company engaged in the wholesale business of other machinery and equipment in Ulsan-gun B, Ulsan-gun, submitted a report on a plan for employment maintenance (suspension of business) from March 2009 to August 2 of the same year on the ground of the aggravation of corporate management conditions, and conducted employment maintenance measures (suspension of business) from April 3 to September 2 of the same year. The Plaintiff applied for employment maintenance support payment for the above period to the Defendant and received KRW 4,800,001 from the Defendant as follows.

A person shall be appointed.

B. On September 16, 2010, the Defendant, upon the notice of the Board of Audit and Inspection, investigated the Plaintiff’s place of business from June 22, 2010 by visiting the Plaintiff’s place of business, and, on September 16, 2010, notified the Plaintiff of the fact that the Plaintiff, despite having been dispatched abroad to the employee C during the period stipulated in the employment maintenance measure (suspension) and received the payment of the employment maintenance support payment unfairly from the Defendant, determined to order the return of the illegally received amount of KRW 4,80,000 and to additionally collect KRW 24,00,000 equivalent to five times the wrongfully received amount.

C. On December 17, 2010, the Plaintiff appealed and filed an administrative appeal on December 17, 201. On August 9, 2011, the Central Administrative Appeals Commission issued an order to return KRW 4,800,000 to a worker who is not eligible for employment maintenance support by manipulating relevant documents by fraud or other improper means, and thus, issued an order to return KRW 4,80,000 is justifiable. However, the pertinent wrongful act subject to additional collection should be excluded from calculating the number of unlawful acts, and the application and the supply and demand should be calculated as follows on the ground that the application and the supply and demand should be calculated as a single unlawful act.” On September 16, 2010, the Central Administrative Appeals Commission rendered a decision that “the Defendant revoked the portion exceeding KRW 19,920,004, out

A person shall be appointed.

(hereinafter referred to as the defendant's original disposition, other than the part revoked by the Central Administrative Appeals Commission in accordance with the above decision, shall be the disposition in this case)

[Grounds for Recognition] A without dispute, Gap evidence Nos. 1-6, Eul's each entry (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

For the following reasons, all or part of the instant disposition is illegal.

(1) During the suspension of business of the Plaintiff, C, a worker of the Plaintiff, did not perform the Plaintiff’s business activities in the Philippines, but did not return to the Republic of Korea due to the Plaintiff’s personal circumstances, and was staying there there (C’s written consent of leave of absence is not forged or forged with C’s consent).

(2) At the time that the Plaintiff applied for employment maintenance support payment to the Defendant, there was no administrative guidance that the employee dispatched overseas at the time of the Plaintiff applied for employment maintenance support payment was not subject to employment maintenance support. Since the Employment Insurance Act, the Enforcement Decree, and the Enforcement Rule do not stipulate the above provisions, there was no intention to deny employment maintenance support payment to the Plaintiff.

(3) In full view of various circumstances, including the violation of the principle of excessive prohibition or the principle of minimum infringement and the fact that the Plaintiff did not have any intention to illegally receive the instant disposition, the instant disposition was deviates from and abused discretion.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the plaintiff's claim (1)

을 제13, 14, 18호증의 각 기재 및 변론 전체의 취지에 의하면, C이 2006. 12. 원고 회사에 입사한 이후로 필리핀에 체류하면서 원고회사를 위해 영업활동을 하였으며 원고회사의 고용유지조치(휴업)기간 중에서도 원고회사의 일을 한 사실이 인정되므로(C이 원고회사의 일을 하는 틈틈이 다른 개인사업을 하였거나, 휴직동의서 작성을 승낙하였다는 것만으로는 위와 같은 인정에 방해가 되지 아니한다), 이 부분에 대한 원고의 주장은 이유 없다.

(2) As to the Plaintiff’s assertion

Pursuant to Article 21 of the Employment Insurance Act, workers dispatched overseas to the defendant are not subject to employment maintenance support, and Article 21 of the Employment Insurance Act provides that "the Minister of Employment and Labor may provide necessary support to the business owner, as prescribed by Presidential Decree, if the business owner, whose adjustment in employment was inevitable due to the reduction of the scale of business, the closure or conversion of business following the business due to the business fluctuations, industrial structure changes, etc., or the suspension or conversion of the business, or takes other measures to stabilize the employment of workers, or if he/she takes other measures to stabilize the employment of workers, he/she may provide necessary support to the business owner." Accordingly, it is obvious that the case where the plaintiff dispatched his/her workers abroad and let the plaintiff conduct his/her business activities is not subject to employment maintenance support, and the fact that C, a worker of the plaintiff company, performed the work of the plaintiff company while he/she was dispatched to the Republic of Korea during the period of employment maintenance measures (suspension) for the plaintiff company's employees, notwithstanding the above evidence, the plaintiff's intent to deny the supply and demand of the plaintiff.

(3) As to the Plaintiff’s assertion

(A) Whether it violates the principle of excess wage payment or the principle of minimum infringement

Since employment maintenance support payment, etc. under Article 21 of the Employment Insurance Act, etc. is a beneficial benefit which is specially granted to an employer who takes measures necessary for employment security by facilitating the stabilization of workers’ livelihood and job-seeking activities through the prevention of unemployment, promotion of employment, etc., and thereby contributing to the economic and social development, there is a significant need to eradicate the illegal activities of the employer who abused the incentives system by unlawful means and to protect the financial interests of the employment insurance, and the illegal receipt of employment maintenance support payment, etc. is a serious threat to the foundation and order of the employment insurance system and the need for sanctions is strongly demanded. In light of the above, Article 35(1) and (2) of the Employment Insurance Act provides that where the employment maintenance support payment was granted by unlawful means, the return of the subsidies may be ordered, and the additional collection of the subsidies shall not be deemed to violate the excessive subsidy provision or the principle of minimum infringement. Accordingly, the Plaintiff’s assertion on this part is without merit.

(B) Whether there is deviation or abuse of discretionary power on the ground of other circumstances

① As to an order to return during the instant disposition

Article 35(1) of the Employment Insurance Act provides, “The Minister of Employment and Labor may order a person who has received or intends to receive support for employment security by fraud or other improper means to restrict such support or return the amount of subsidy received by fraud or other improper means, as prescribed by Presidential Decree.” Accordingly, Article 56(1) and (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) provides, “The Minister of Employment and Labor shall not order the person who has received or intends to receive the subsidy by fraud or other improper means to return the subsidy, etc. for one year from the date the person received or applied for the subsidy, and shall order the person to return the subsidy, etc. already paid.” Accordingly, the Minister of Employment and Labor requires the person who has received or intended the subsidy, etc. to order the person to return the subsidy, etc. from the date the person received or intended to receive the subsidy, etc. by fraud

Therefore, since the order to return the amount of illegal receipt of employment maintenance support payment is not a discretionary act but a binding act, the argument that the order to return the amount of illegal receipt during the disposition in the instant case deviates from and abused discretion on the premise that the order to return the amount of illegal receipt is a discretionary act is without merit.

② As seen earlier with regard to the decision of additional collection among the dispositions in the instant case, employment maintenance support payment, etc. under Article 21 of the Employment Insurance Act is a beneficial benefit that is specially paid to an employer who takes measures necessary for employment security in order to promote the stabilization of workers’ livelihood and job seeking by preventing unemployment, promoting employment, etc., and thereby contribute to the economic and social development. As such, an employer who abused the incentive system by unlawful means is deemed to eradicate illegal acts of the employer, and an unlawful receipt of employment maintenance support payment, etc. is a significant and significant need for public interest in protecting the finances of employment insurance, and further, a need for sanctions is strong. In addition, Article 35(2) of the Employment Insurance Act provides that “where a return order is issued pursuant to paragraph (1), an amount not exceeding five times the amount received by such fraudulent or other unlawful means may be additionally collected in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor, and accordingly, Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 20101).

2. In cases where the Plaintiff received or applied for payment of the amount of money obtained by false or other unlawful means during the latest five years prior to the date of detection of such unlawful acts: Two times the amount received by such fraudulent or other unlawful means; three times the amount received by such fraudulent or other unlawful means; and three times the number of times the Plaintiff applied for or applied for such unlawful acts in the past five years prior to the date of detection of such unlawful acts is at least twice: “five times the amount received by such fraudulent or other unlawful means”. As such, where one and several unlawful acts were discovered at one time, such unlawful acts were conducted before the date of detection; thus, if such unlawful acts were deemed to have been committed until the date of detection of such unlawful acts, the Plaintiff’s additional collection of the amount of money obtained by such unlawful acts cannot be deemed to have been made in accordance with the aforementioned provision regarding additional collection of the amount of money additionally collected prior to such unlawful acts, other than the number of times of unlawful acts previously collected prior to such determination of the amount of money collected by such unlawful acts.

In full view of the above, even if the Plaintiff takes into account all the circumstances, the need for the public interest to achieve additional collection among the dispositions in this case cannot be deemed to be less than the disadvantage the Plaintiff would incur, and thus, the decision of additional collection among the dispositions in this case cannot be deemed to deviate from or abuse the bounds of discretion. Thus, 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.