(영문) 서울행정법원 2014.11.6. 선고 2014구합62418 판결

The Defendant’s disposition of restricting the payment of unemployment benefits, ordering the return of unemployment benefits, and imposing additional collection against the Plaintiff on November 15, 2013 is revoked.

Reasons

1. Details of the disposition;

A. From February 22, 2010 to January 7, 2013, the Plaintiff served as an employee on the Subdivision Co., Ltd. (hereinafter referred to as “NF”) and on the Korea P&P sales company (hereinafter referred to as “Korea P&P branch”) from July 1, 2013 to August 30, 2013.

B. On September 6, 2013, the Plaintiff filed an application for recognition of eligibility for benefits under Article 43 of the Employment Insurance Act with the name “(main day), i.e., the date of acquisition of qualification (the date of completion of provision of employment)”, “the date of severance (the last day of provision of employment)”, “the date of departure from employment”, and “the date of termination of the contract.” On September 10, 2013, the Defendant recognized eligibility for benefits to the Plaintiff, and paid job-seeking benefits to the Plaintiff as indicated below, with the Plaintiff’s daily amount of job-seeking benefits at KRW 34,992.

A person shall be appointed.

D. On November 15, 2013, the Defendant issued a disposition ordering the Plaintiff to suspend the payment of unemployment benefits pursuant to Articles 61 and 62 of the Employment Insurance Act and Articles 104 and 105 of the Enforcement Rule of the same Act, on the ground that “the Plaintiff was on the part of the Plaintiff at the Donb, the head of the final departure from employment business approved as eligible for benefits, and confirmed that the Plaintiff was on the job (from July 1, 2013 to August 30, 2013) in the Donbnb, the head of the final departure from employment business approved as eligible for benefits, and that “the Plaintiff was confirmed to have received unemployment benefits illegally” (hereinafter “instant disposition”). The Defendant issued an order to return the amount of unemployment benefits received and to pay the amount of additional collection [2,519,420 won in total (=1,259,710 won + the amount additionally collected + 1,259,710 won];

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

1) It is intended to verify whether the filing of a final report on an applicant for unemployment benefits is a person not unemployed during the period subject to unemployment recognition. As long as eligibility for unemployment benefits under Article 40 of the Employment Insurance Act is recognized, the filing of an application by false or unjust means for a false report on the final workplace by mistake cannot be deemed to have been filed by the Plaintiff

2) Therefore, the instant disposition is unlawful as the grounds for disposition are not recognized.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) According to the main sentence of Article 61(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date on which he/she received, or attempted to receive, such unemployment benefits. According to Article 62 of the same Act, the head of an employment security office may order the recipient of the job-seeking benefits by fraud or other improper means to fully or partially return the total amount of job-seeking benefits he/she has received, and in addition, the head of an employment

The fact that the plaintiff, at the time of applying for recognition of the plaintiff's eligibility for benefits, entered the final place of business in the application for recognition of the plaintiff's eligibility for benefits as a part of the fact that the plaintiff entered the final place of business in the application for recognition of eligibility for benefits as a part of the above, is identical to the fact that the plaintiff entered the final place of business in the application for recognition of eligibility for benefits as a part of the above.

2) “False or other unlawful means” under the main sentence of Article 61(1) and Article 62 of the Employment Insurance Act refers to any and all unlawful acts committed by a person who is not eligible for benefits by pretending the eligibility for benefits or concealing the fact of employment or the occurrence of income, etc., which may affect the decision-making on the payment of unemployment benefits (see, e.g., Supreme Court Decisions 2002Du7494, Sept. 23, 2003; 201Du7564, Jun. 13, 2013).

3) According to Articles 40(1) and 43(1) of the Employment Insurance Act, a person who intends to obtain job-seeking benefits (excluding a person who was a daily employed worker at the time of the final severance from employment) shall obtain the recognition of the fact that the applicant meets all the eligibility requirements for job-seeking benefits under Article 58 of the Employment Insurance Act (hereinafter referred to as “beneficiary”). Meanwhile, under Article 43(3) of the Employment Insurance Act, a person who, prior to the employment for the last severance from employment as the insured, has retired from employment as the insured before the employment for the last severance from employment, has not received job-seeking benefits in relation to the employment before the date of the most recent severance from employment, as the basis of the most recent severance from employment; and (2) the Plaintiff shall be determined as the basis of the most recent severance from employment in relation to the employment of the insured under Article 41 of the Employment Insurance Act before the date of the most recent severance from employment.

In addition, according to the main sentence of Article 45(1) of the Employment Insurance Act, the daily wage as the basis for calculating job-seeking benefits (hereinafter referred to as "daily wage") is the average wage calculated pursuant to Article 2(1)6 of the Labor Standards Act at the time of the most recent severance from employment related to recognition of eligibility for benefits under Article 43(1) of the Employment Insurance Act. According to Article 58 of the Employment Insurance Act, where the head of an employment security office recognizes that the severance from employment is an insured worker who has left employment due to his/her own reason and has

In full view of this, it is reasonable to view that the final application for recognition of eligibility for benefits is an act that may affect the decision-making on the payment of unemployment benefits by the head of the employment security office, barring special circumstances such as the recognition of eligibility for benefits even if the actual final employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based employment-based relationship.

According to Article 2(1)6 of the Labor Standards Act, "average wage" refers to the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period prior to the date on which a ground for calculating it occurred by the total number of days during which the relevant period was divided by the total number of days during which the relevant period was employed. As such, the daily wage under the main sentence of Article 45(1) of the Plaintiff's Employment Insurance Act refers to 52,459 won [the daily wage under the main sentence of Article 45(1) of the Plaintiff's Employment Insurance Act = (1,50,000 + 10,000 won) X 2 months/61 days, but less

According to Article 46(1)1 of the Employment Insurance Act, in the case of Article 45(1) of the Employment Insurance Act, the daily amount of job-seeking benefits multiplied by 50/100 of the eligible recipient’s daily wage is the eligible recipient’s daily amount of job-seeking benefits. Therefore, the Plaintiff’s daily amount of job-seeking benefits (=52,459 won x 0.

Therefore, even though the plaintiff's actual final job-seeking amount of job-seeking benefits was KRW 26,229, the defendant, based on the plaintiff's final final job-seeking benefits amounting to KRW 34,92, and paid job-seeking benefits to the plaintiff by calculating the job-seeking benefits amount as KRW 34,92. Thus, the plaintiff's final job-seeking benefits act of false entry of the plaintiff's final job-seeking benefits constitutes "any false or other unlawful means" provided for in the main sentence of Article 61 (1) and Article 62 of the Employment Insurance Act (the plaintiff's act of false entry of the plaintiff's final job-seeking benefits into the Seoul Southern District Office on June 2013, when visiting the Seoul Southern District Office and receiving education on unemployment benefits, it means that the above employee of the Seoul Southern District Office would make an internship at the Korean P&n site and asked the company that serves as the basis for applying for unemployment benefits." However, there is no evidence to acknowledge it).

5) Therefore, the Plaintiff’s assertion is without merit, and the instant disposition is lawful.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.