(영문) 부산고등법원 2011.2.11. 선고 2010누5974 판결

The judgment of the first instance shall be revoked. The defendant's decision to suspend payment of unemployment benefits against the plaintiff on May 13, 2010 and to additionally collect and return unemployment benefits against the plaintiff shall be revoked.

Reasons

1. Details of the disposition;

The following facts may be acknowledged either in dispute between the parties or in each entry in the evidence Nos. 1, 2, and 4, by integrating the purpose of the entire pleadings:

A. On December 3, 2009, the Plaintiff retired from employment at a Gyeongnam International Foreigners’ School located in Sacheon-si, and on December 7, 2009, the Plaintiff applied for recognition of eligibility for employment insurance to the Defendant for payment of KRW 150 days for the fixed benefit payment days, KRW 23,125.66 days for job-seeking benefits. The Plaintiff received KRW 3,715,200 from the Defendant five times in total from December 14, 2009 to April 21, 2010.

B. After that, the defendant was confirmed that the plaintiff was not entitled to receive unemployment benefits pursuant to Article 40(2) of the Employment Insurance Act (the period of medical care from September 17, 2009 to April 21, 2010) as of the date of application for eligibility for benefits (the date of application: the date of December 7, 2009), but it was confirmed that the plaintiff was not entitled to receive unemployment benefits pursuant to Article 40(2) of the Employment Insurance Act (the period of medical care from September 17, 2009 to April 21, 2010, pursuant to Articles 61(1) and 62(1) of the Employment Insurance Act and Articles 104, 105, and 106 of the Enforcement Rule of the same Act, the defendant suspended the payment of unemployment benefits to the plaintiff on May 13, 201, and additionally collected the same amount as the amount of unemployment benefits in this case.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, while the Plaintiff was in the period of the additional medical care, filed a report on unemployment, and notified the person in charge of the unemployment recognition that the Plaintiff could not attend because of contact with the person in charge of the unemployment recognition while receiving the additional medical care. However, if the person in charge fails to attend within two weeks, the unemployment recognition is terminated and the computer network is finished at the end of the year, so it would be difficult to say that he would be present in December 30, 2009. In addition, the Plaintiff was present on December 30, 2009. The medical certificate for the medical care was submitted, and the date of the payment of unemployment benefits was January 7, 2010, and the unemployment benefits was not overlapped with the temporary disability compensation benefits expired on December 31, 2009. Therefore, it is too harsh for the Plaintiff to return the amount to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

The following facts are either in dispute between the parties, or in each entry in the evidence No. 2, No. 3-1, No. 2, and No. 5 through No. 10, the whole purport of the pleadings may be acknowledged by considering the whole purport of the pleadings:

(1) From September 17, 2009 to December 31, 2009, the Plaintiff received respectively KRW 488,090 as temporary layoff benefits on October 21, 2009, KRW 1,163,920 on November 2, 2009, and KRW 1,126,380 on December 14, 2009, and KRW 1,163,920 on January 4, 201, respectively.

(2) On December 7, 2009, the Plaintiff, upon filing an application with the Defendant for recognition of eligibility for benefits, submitted the written application for recognition of eligibility for benefits with the indication of "no. 2.0" in the phrase "no. 2.0".

(3) The defendant designated the unemployment recognition date on December 21, 2009 as the unemployment recognition date pursuant to Article 44(2) of the Employment Insurance Act. On December 21, 2009, the plaintiff requested the defendant to contact the person in charge of unemployment benefits to find out his intention of absence, and to change the date, and the defendant's tendency to concentrate on the unemployment recognition at the beginning of the year due to annual leave from the person in charge of the defendant at the end of December, 2009, and asked the defendant to attend the meeting on December 30, 2009. The defendant's person in charge entered "the reasons for non-appearance in the column of the recipient information of the employment insurance computer network" as "the plan for hospital treatment/12.30 days".

(4) On December 30, 2009, the Plaintiff was present for the verification of unemployment and stated in the application form for the alteration of the unemployment recognition, as the ground for the change of the unemployment recognition submitted by the Plaintiff, and the written opinion of issuance of B Hospital submitted as an explanatory material stated in the B Hospital’s statement of opinion is as follows: “The examination name is as follows: (a) the satisfying of other specified estimated signboards, the satisfys, the opinion, and the opinion on September 17, 2009, while working at the workplace (in the course of selling the land in the school), the main body is as follows: (b) the patient is suspected of having been injured on the examination and

(5) The written request for recognition of unemployment submitted by the Plaintiff to the Defendant on December 30, 2009 and January 27, 2010, stating that “a confirmation of unemployment during the period subject to recognition of unemployment” is “non-existent” in the part of “the period subject to recognition of unemployment”.

(6) The Defendant’s employment insurance computer network is registered as an item related to illegal receipt if the period for receiving unemployment benefits overlaps with the period for receiving unemployment benefits, which can be searched even in the Defendant’s employment insurance computer network, if the Korea Workers’ Compensation & Welfare Service makes good decisions, provides them to the Central Employment Information Institute, and enters the records in the Central Employment Information Institute.

(7) On April 20, 2010, the Defendant confirmed from time to time whether unemployment benefits and the additional medical care period overlap, and confirmed that the Plaintiff received temporary layoff benefits as described in paragraph (1), upon registering the Plaintiff as a beneficiary of unemployment benefits and industrial accident insurance overlap, requested data from the Korea Workers' Compensation and Welfare Service Governor, and confirmed that the Plaintiff received temporary layoff benefits as described in paragraph (1).

D. Determination

(1) Determination on the suspension and return of unemployment benefits during the instant disposition

(A) According to Article 40(1)2 of the Employment Insurance Act, job-seeking benefits are required to be in a state of non-employment in spite of the insured's intent and ability to work. According to Article 44(2) of the Employment Insurance Act, Article 63(3) of the Enforcement Decree of the same Act, and Article 87(1) of the Enforcement Rule of the same Act, where the insured becomes eligible for temporary disability compensation benefits under Article 52 of the Industrial Accident Compensation Insurance Act, the insured shall not be acknowledged as having been actively re-employed. Pursuant to Articles 61(1) and 62(1) of the Employment Insurance Act, a person who receives job-seeking benefits by fraud or other improper means may be ordered to return all or part of the job-seeking benefits received without paying the job-seeking benefits from the date of receiving the benefits, and “any fraudulent or other unlawful means” refers to all fraudulent acts committed by a non-eligible person in order to pretend eligibility for benefits or to conceal the fact of employment or income generated (see, e.g., Supreme Court Decision 2002Du7494, Sept.

On December 7, 2009, when the plaintiff received temporary layoff benefits under Article 52 of the Industrial Accident Compensation Insurance Act at the time of applying for recognition of eligibility for employment insurance benefits, he/she reported the fact that he/she received temporary layoff benefits and recognized eligibility for unemployment benefits by falsely reporting the fact that the plaintiff filed a false report and received job-seeking benefits totaling KRW 3,715,200 from December 14, 2009 to April 21, 2010, the fact that the plaintiff received job-seeking benefits by falsely reporting the fact that he/she received job-seeking benefits from December 14, 2009 to April 21, 2010 is seen as above. As such, the plaintiff is considered as a person who did not actively make efforts for reemployment under Article 87 (2) 3 of the Enforcement Decree of the Employment Insurance Act by receiving temporary layoff benefits under Article 52 of the Industrial Accident Compensation Insurance Act, and thus, the plaintiff is a person who received unemployment benefits by false or other unlawful means.

Therefore, the defendant's disposition to suspend the payment of unemployment benefits and to return the amount of the benefits payable to the plaintiff is legitimate when considering that the whole amount of the job-seeking benefits received by the plaintiff constitutes an illegal amount of benefits.

(2) Determination on the disposition of additional collection among the instant disposition

(A) Article 62(1) of the Employment Insurance Act provides that an amount equivalent to or less than the amount of job-seeking benefits paid to a person who received job-seeking benefits by fraud or other improper means may be collected. Article 105(1) of the Enforcement Rule of the Employment Insurance Act provides that “The amount additionally collected pursuant to Article 62(1) of the Employment Insurance Act shall be 100/100 of the amount of job-seeking benefits,” and Article 62(2) of the same Act provides that a person who voluntarily reported misconduct before investigating the person himself/herself or his/her place of business, or a person who falls under any of the subparagraphs of Article 80 of the Decree

With respect to the instant case, the following circumstances revealed through the above recognition: (a) the Plaintiff, upon receiving temporary disability compensation benefits under Article 52 of the Industrial Accident Compensation Insurance Act, deemed a person who has not actively engaged in reemployment under Article 87(2)3 of the Enforcement Decree of the Employment Insurance Act; and (b) failed to meet the requirements for receiving job-seeking benefits under Article 40 of the Employment Insurance Act; (c) the Plaintiff concealed the fact that the Plaintiff was receiving temporary disability compensation benefits and received KRW 3,715,200 on five occasions from December 14, 2009 to April 21, 2010; (d) the Plaintiff committed unlawful acts on December 30, 2009 and January 27, 2010; and (e) based on the fact that the Plaintiff received job-seeking benefits by entering false facts in the application form for unemployment recognition; and (e) the Plaintiff’s failure to report the fact that the Plaintiff received job-seeking benefits by fraudulent or other unlawful means, thereby making it difficult to view the Plaintiff’s unlawful collection of job-seeking benefits or other unlawful means.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.