(영문) 광주지방법원 2012.12.6. 선고 2012구합3682 판결

A. On March 13, 2008, the Plaintiff was appointed from a social welfare foundation B (hereinafter “B”) to the C Director who was employed as a subordinate facility, and was dismissed on January 18, 2012 by a corporation related to B due to revocation and closure of the facility.

B. On January 20, 2012, the Plaintiff visited the Employment Insurance Center under the Defendant’s jurisdiction to apply for unemployment benefits, and sought explanation from the person in charge that the insured status is not recognized, the Plaintiff applied for recognition of insured status with employment insurance to the Defendant around February 1, 2012. On February 14, 2012, the Defendant issued a non-approval of insured status with employment insurance (hereinafter “instant disposition”).

D. On May 2, 2012, the Plaintiff filed a petition for review with an employment insurance examiner against the instant disposition, but was dismissed on June 15, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (including each number, hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

1) Although the instant disposition was a disadvantageous disposition rejecting the Plaintiff’s application, the Defendant violated the procedure because it did not go through prior notice and hearing procedures, and did not present the grounds therefor.

2) The Plaintiff is a worker who has insured status with employment insurance since the Plaintiff provided labor to B and obtained wages after deducting earned income tax and mandatory insurance tax.

3) The Plaintiff paid employment insurance premiums with belief that it would be able to prepare for unemployment, and received employment insurance refund education on the premise that the Plaintiff had insured status. Therefore, the instant disposition violates the principle of trust protection and principle.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) As to the plaintiff's first argument, Article 21 (1) of the Administrative Procedures Act provides that when an administrative agency imposes an obligation on the party or imposes a restriction on his rights and interests, it shall notify in advance the party concerned of the title of the disposition, name or title, and address of the party concerned, the facts causing the disposition, the legal basis for the disposition, the contents of the disposition, and the submission of his opinion, the method of handling the case in which the party concerned does not submit his opinion, the name and address of the agency which presented his opinion, and the deadline for submitting his opinion. Article 22 (3) of the same Act provides that the party concerned shall be given an opportunity to present his opinion in imposing an obligation upon the party concerned or restricting his rights and interests. In the absence of the disposition upon the party concerned, barring any special circumstance, even if the disposition upon the application is not a "disposition that restricts the rights and interests of the party concerned" and thus, it cannot be said that the disposition is subject to prior notice or hearing of opinions (see Supreme Court Decision 2003Du674, Nov. 28, 2003).

However, the disposition of this case is not subject to prior notice or hearing of opinions in accordance with the above legal principles as a rejection disposition against the plaintiff's application for recognition of insured status, and the defendant's disposition of this case is not subject to prior notice or hearing of opinions. Meanwhile, in light of the fact that the plaintiff was appointed from B and registered in his name, exercises his/her external power of representation, and exercises his/her power of appointment and service management for employees, etc., the fact that the plaintiff cannot be viewed as an employee is stated as above. Thus, the plaintiff's assertion that the plaintiff did not undergo prior notice

2) On the Plaintiff’s second assertion, Article 2 subparag. 1 (a) of the Employment Insurance Act provides that the term “insured worker” means a worker who is insured or deemed to have been insured pursuant to the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter “Insurance Premium Collection Act”), and Article 2 subparag. 2 of the Insurance Premium Collection Act provides that “worker” refers to a worker under the Labor Standards Act. Thus, the insured person eligible for employment insurance should be an employee under the Labor Standards Act. However, whether an employee is a worker under the Labor Standards Act should be determined depending on whether an employee has provided labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace, rather than whether the form of a contract is an employment contract, and whether the employee has a subordinate relationship as mentioned above. Determination of whether an employee has a considerable command and supervision in the process of performing his/her duties should be made on the basis of determining whether the employer has designated working hours and working places and is bound by the employer, whether an employee is subject to remuneration or not, and whether he/she has an independent labor relationship with his/her own wage and losses.

As to the instant case, each statement of Nos. 1 through 3 includes the overall purport of the pleadings. In other words, the Plaintiff was commissioned by C from C to perform personnel affairs, accounting, and management affairs, and the representative of C, other relevant statutes, the articles of incorporation, and the regulations on the operation of facilities. According to the above commissioning contract concluded between B and the Plaintiff, the term of existence is two years, the term of validity is terminated as long as the contract is not renewed in writing, and if it is deemed that the purpose of the contract cannot be achieved due to the plaintiff's defective performance of duties, the contract can be terminated immediately, and other provisions on delegation under the Civil Act can be applied. According to the regulations on the operation of C, the head of C represents represents C as the head of the facility, takes overall control over the facility and affairs, and exercises personnel rights such as employment, punishment, promotion, etc., under the direction and control of its employees. In light of the fact that the Plaintiff actually completed registration as the representative of C and performed external activities, the Plaintiff shall not be deemed to have been delegated with the authority to conduct the overall management and supervision of the accounts.

Therefore, since the Plaintiff cannot be deemed to have insured status, this part of the Plaintiff’s assertion is without merit.

3) In general, in relation to the plaintiff's third argument, in order to apply the principle of protecting the trust of the administrative agency's act in administrative legal relations, the administrative agency should first make the public opinion list that is the object of trust to the individual; second, the administrative agency's trust in the opinion list that is justifiable does not cause the individual to be responsible; third, the administrative agency should have done any act against the above opinion list; fourth, the administrative agency's disposition contrary to the above opinion list that is contrary to the above opinion list, thereby infringing the individual's trust in the opinion list; last, it should not be a case where the administrative disposition pursuant to the above opinion list is likely to seriously undermine the public interest or legitimate interests of the third party (see, e.g., Supreme Court Decisions 200Du8684, Sept. 28, 2001; 2004Du13592, Feb. 24, 2006).

With respect to the instant case, even if the purport of the entire argument is added to the statement in the Evidence No. 1-2, No. 1-2, No. 5, No. 5, and No. 8, the Plaintiff was registered as having acquired the insured status by being appointed as C, and the Plaintiff’s wage was withheld from the Plaintiff’s wage, the Plaintiff’s wage and salary income tax and medical insurance premium was paid from November 16, 2009 to December 28, 2009, and each workplace skill development training was conducted from January 25, 2010 to February 8, 2010, it is recognized that the Plaintiff was the result of registration following the report on acquisition of the insured status by B, and such circumstance alone does not necessarily mean that the Defendant expressed a public opinion that the Defendant would be the employee. Therefore, this part of the Plaintiff’s assertion that the instant disposition violates the principle of trust protection is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.