(영문) 수원지방법원 2018.8.30.선고 2018구합419 판결

In September 28, 2017, the Defendant’s disposition of restricting the payment of unemployment benefits, ordering the return of unemployment benefits, and imposing additional collection shall be revoked.

Reasons

1. Details of the disposition;

A. On February 28, 2017, the Plaintiff served as security guards at B Company B and retired on February 28, 2017. On March 6, 2017, the Plaintiff applied for recognition of eligibility for employment insurance benefits to the Defendant, thereby recognizing eligibility for benefits of KRW 240 days in fixed payment days, the amount of the former class to KRW 46,584, and received KRW 8,385,100 for job-seeking benefits for KRW 180 from March 13, 2017 to September 8, 2017.

B. From August 4, 2017 to August 13, 2017, the Plaintiff received wage of KRW 425,800 as security guards, for five days, from the C Apartment managed by Gyeongsung Co., Ltd. However, the Plaintiff did not report his/her work on August 10, 2017 ( August 4, 2017; August 6, 2017; August 8, 2018; hereinafter the same year) for the period from July 11, 2017 to August 10, 2017, and received KRW 31,44,100 for unemployment benefits for the period from July 11, 2017 to August 10, 2017 without reporting his/her work on September 1, 2017, which is the unemployment recognition date, until August 31, 2017; and the Plaintiff received KRW 425,800 for unemployment benefits from August 28, 2017.

C. On September 28, 2017, the Defendant issued an order to restrict the payment of unemployment benefits to the Plaintiff on the ground that “the Plaintiff worked as a security guard at the Da apartment apartment management of the Gyeong L&W Co., Ltd. for a total of five days from August 4, 2017 to August 13, 2017, and issued an order to return the unemployment benefits amounting to KRW 2,562,120 and to additionally collect KRW 46,580 (hereinafter “instant disposition”).

D. On January 17, 2018, the Plaintiff appealed and filed a request for reexamination with the Employment Insurance Review Committee. However, on January 17, 2018, the judgment dismissing the Plaintiff’s request for reexamination was rendered.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In light of the fact that the plaintiff's old disabled person and his spouse is not supported by cancer treatment as a disabled person, and the plaintiff was unable to report the curriculum in the unemployment benefits briefing session to a certain extent, and the degree of violation of the law is minor, the disposition of this case is deviating from and abusing discretion in violation of the principle of proportionality.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) According to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the same Act, an eligible recipient shall report to the head of an employment security office, stating the fact in the first application for unemployment recognition which is submitted within the unemployment recognition date after the date he/she provided his/her labor during the period eligible for unemployment recognition. According to 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 he/she received, or attempted to receive, such benefits. According to Article 61(2) of the Employment Insurance Act, an act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Employment Insurance Act constitutes “an act of receiving unemployment benefits by fraud or other improper means.” In such cases, the head of an employment security office may order to return all or part of the job-seeking

An amount equivalent to or less than the amount of job-seeking benefits received by fraud or other improper means may be collected.

(2) In the instant case, as seen earlier, the Plaintiff received wages by working for five days from August 4, 2017 to August 13, 2017; however, the Plaintiff stated false facts twice in the application for unemployment recognition on August 10, 2017 and September 28, 2017, such as stating that there is no labor fact in the application for unemployment recognition; and “any false or other unlawful means” under the Employment Insurance Act means any and all unlawful acts conducted to conceal the eligibility of an unqualified insured person or the lack of eligibility to receive such payment, which may affect the decision-making process (see Supreme Court Decision 2009Du4272, Jun. 11, 2009), it is reasonable to deem that the Plaintiff received job-seeking benefits by unlawful means twice.

(3) The following circumstances revealed by the facts and relevant laws and regulations as seen earlier, i.e., (i) the Plaintiff did not report the fact that the Plaintiff had worked for the period subject to the recognition of unemployment at the time of applying for the recognition of unemployment on two occasions (the date of receiving the job-seeking benefits or of September 8, 2017). (ii) the payment of job-seeking benefits (the unemployment benefits) on August 10, 2017, which was the date of receiving, or attempted to receive, the job-seeking benefits under Article 61(1) of the Employment Insurance Act, is limited; (iii) pursuant to Article 104 Subparag. 1 of the Enforcement Rule of the Employment Insurance Act, ordering a return of the total amount of illegal receipt; and (v) pursuant to Article 104 Subparag

Article 105(1) of the Enforcement Rule of the Employment Insurance Act provides that the amount of job-seeking benefits already collected shall be 10/100 of the amount of job-seeking benefits paid to a worker who was employed at the time of the final departure from employment or who promised to faithfully comply with an investigation into unlawful acts and immediately pay the amount of unemployment benefits for the period of unemployment recognized only once. In the case of the Plaintiff, even though the Defendant committed two unlawful acts, the Defendant orders the return of benefits from July 11, 2017 to September 8, 2017, not all the job-seeking benefits paid to the Plaintiff; and 3. Article 105(1) of the Enforcement Rule of the Employment Insurance Act provides that the amount of additional collection for the period of unemployment recognized by the Plaintiff shall be 46,580 won, which is considerably reduced compared to the amount of job-seeking benefits paid to the Plaintiff; and 4. In the case of this case, it is reasonable to deem that the Plaintiff’s employment benefits were not paid within the scope of his/her discretion and discretion in the Employment Insurance Act.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, judge and deputy judge

Judges Jeong-jin

Judges Gangseo-up

Note tin

1) According to Article 62(2) of the Employment Insurance Act, if a violation is committed once, job-seeking benefits shall not be paid for the period subject to recognition of unemployment;

Article 62 (1) of the Employment Insurance Act shall apply since the plaintiff committed a violation at least twice.