(영문) 서울행정법원 2010.12.10. 선고 2010구합40809 판결

A. The Plaintiff is operating a certified tax accountant office in Gangnam-gu Seoul Metropolitan Government 4th floor C from December 12, 1993 after acquiring the qualification as a certified tax accountant.

B. The Plaintiff newly employed D on January 10, 2008 as an employee of the said office, and received new employment promotion subsidy for the said employee from the Defendant from January 2009 to July 2009, Article 23 of the Employment Insurance Act (amended by Act No. 10337, May 31, 2010; hereinafter the same shall apply), Article 26(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same shall apply), Article 44(1) of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010).

C. On January 5, 2010, the Defendant notified the Plaintiff of a decision to recover KRW 3,890,310 of the new employment promotion subsidy pursuant to Article 35(1) of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act, on the ground that the said D was not a worker employed by an arrangement by an employment security office, etc. (hereinafter “instant disposition”).

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 2, Eul evidence Nos. 1 and 2 (including numbers; hereinafter the same shall apply)

2. The assertion and judgment

A. The plaintiff's assertion

Since the Plaintiff informed D of the above law to D who was unaware of the Employment Insurance Act, employed a person in a state of unemployment and resolved the state of unemployment, the ultimate purpose of the above law was achieved, and accordingly, the instant disposition ordering the return of new employment promotion amount was unlawful.

(b) Related statutes;

Article 23 of the Employment Insurance Act (Support for Promotion of Employment of the Aged, etc.) (Amended by Act No. 10337, May 31, 2010)

The Minister of Labor may, as prescribed by Presidential Decree, provide necessary assistance to employers who newly employ the aged, etc. or take necessary measures for their employment stability in order to promote the employment of those who have particular difficulty in finding employment under normal conditions of the labor market, such as the aged (hereinafter referred to as the "seniors, etc.") or to workers involved in such employers' actions.

Article 35 (Restriction, etc. on Support due to Cheating) (1) The Minister of Labor may order any person who has received or intends to receive support for vocational skills development activities under this Chapter by fraud or other improper means to restrict such support or to return the amount of support received by fraud or other improper means, as prescribed by Presidential Decree.

Article 26 (1) (1) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) shall pay a new employment promotion subsidy to a business owner who newly employs a person in excess of the period of unemployment for each eligible person specified in attached Table 1 (excluding those prescribed by Ordinance of the Ministry of Labor, such as short-term workers, etc.) as an insured (limited to the business owner of preferentially supported enterprises where newly employed workers fall under subparagraph 5 of attached Table 1) through the referral of employment security offices, etc., after calculating the date of job seeking registration with an employment security office or any other agency prescribed by Ordinance of the Ministry of Labor (hereafter referred to as "employment security agency, etc." in this Article) pursuant to Article 23 of the Act: Provided, That where a newly employed worker is employed by a business owner prior to his/her final severance from employment (including a business owner prescribed by Ordinance of the Ministry of Labor, such as a merger with the business owner prior to his/her final severance from employment or a business subject to such restrictions, the employment promotion subsidy shall be granted only to employment security offices.

(1) Pursuant to Article 35(1) of the Act, the Minister of Labor shall not pay any person who has received or intends to receive any of the following subsidies, incentives, or training costs for vocational skills development by fraud or other improper means, the remainder of such subsidies, incentives, or subsidies, incentives, or training costs for vocational skills development, and shall order him/her to refund the subsidies, incentives, or training costs already paid

1. Subsidies or grants under Articles 13 through 16, 19, 22, 24 through 26, 28 through 32, 32-2, 33 through 37, 37-2, 38, and 55;

2. Training expenses for vocational skills development under Articles 41, 43 through 47, 47-2, 48, 49, and 51 through 54;

(2) A person who has received, or intends to receive, subsidies, incentives, or vocational skills development training expenses referred to in the subparagraphs of paragraph (1) by fraud or other improper means shall not be paid subsidies, incentives, or vocational skills development training expenses for one year from the date he/she has received, or applied for, subsidies, incentives, or vocational skills development training expenses pursuant to Article 35 (1) of the Act, and the Minister of Labor shall order the person to refund subsidies, incentives

(3) A person who is ordered to return (including additional collection under Article 35 (2) of the Act; hereafter the same shall apply in this Article) under paragraph (1) or (2) shall pay the notified amount within 30 days from the date on which he/she receives the notification. In such cases, the payment method shall be the principle for lump sum payment, but if the amount to be paid exceeds 10 million won and exceeds 1/2 of the estimated premium for the business, the payment may be made in installments

(4) Where a person in receipt of an order to return pursuant to paragraphs (1) through (3) fails to fulfill his/her obligation to pay within a fixed period, subsidies, incentives, or training expenses for vocational skills development shall not be paid for the period of non-performance of such obligation. Article 44 of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010) (Requirements for Payment

(1) "Other agencies prescribed by Ordinance of the Ministry of Labor" in the main sentence of Article 26 (1) of the Decree means any of the following agencies, which are directly engaged in job placement services under subparagraph 2 of Article 4 of the Employment Security Act:

1. The State or local governments, other than employment security offices;

2. Korea Manpower Agency under the Korea Manpower Agency Act;

3. The Korea Employment Promotion and Vocational Rehabilitation of Disabled Persons Act;

4. The Talent Bank of the Aged under Article 11 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion or the Employment Support Center for Middle-Large Professional Manpower under Article 11-2 of the same Act;

(1) On July 29, 2008, October 1, 2008, October 1, 2008, October 1, 2008, 2008, October 2, 2008, and October 2, 2008, D requested employment mediation through the Internet Webnet (hereinafter referred to as the "Worknet") operated by the Ministry of Labor, but was not yet employed. On October 23, 2008, D again requested employment mediation through the said Worknet, and the Internet IP address at the time of such request is E.

(2) On October 24, 2008, 2008, 18:13:48, the Plaintiff requested job offers brokerage in the certified tax accountants' office operated by the Plaintiff. At the time of the request, the tenet IP address at the time of the request is the same as the IP address requested for D. The Plaintiff and D are registered in thenet Work as being employed with good offices by the Seoul Southern Employment Center under the Ministry of Labor on October 24, 2008.

(3) On December 29, 2009, employees of the Seoul Gangnam General Employment Center asked D about whether the IP address is identical for the same reason and actually employed through the workshop as above, and D stated that "after reporting the company information in the workshop and submitting a separate resume to the company, interview with the company separately and contact with the company, the request for mediation is made by the company."

[Reasons for Recognition] Each entry of evidence Nos. 2 through 6, the purport of the whole pleadings

D. Determination

According to Article 23 of the Employment Insurance Act and Article 26(1) of the Enforcement Decree of the Employment Insurance Act, Article 26(1) of the Employment Insurance Act provides that a new employment promotion subsidy shall be paid to a business owner who newly employs a person in a state of unemployment through an arrangement by an employment security office, etc.. The new employment promotion subsidy is paid to a business owner who takes measures necessary for employment security in order to prevent the structural deterioration of unemployment by promoting employment of workers who are particularly difficult to find employment under the ordinary conditions of the employment market and to facilitate entry of the unemployed into the labor market. As such, the aforementioned provision provides that “new employment by an arrangement by an employment security office, etc.” as one of the requirements for payment of the subsidy is to prevent job seekers

According to the above facts, it is clear that the plaintiff did not employ D through the recommendation of the Seoul Gangnam General Employment Center through the Worknet, but requested employment mediation using office PC after employing D directly interview. Thus, this cannot be viewed as the plaintiff's employment security office, etc., and therefore, the plaintiff was paid the incentive to D who is not the person eligible for the new employment promotion subsidy.

Therefore, the disposition of this case where the defendant, on the ground as above, collects money from the plaintiff for the promotion of mental employment corresponding to D is legitimate, and the plaintiff's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case seeking revocation on the ground that the disposition of this case is illegal is dismissed as it is without merit.