(영문) 대구지방법원 2012.7.27. 선고 2011구합4505 판결

The Defendant’s disposition to refund KRW 15,262,50 to the Plaintiff on August 27, 2010, and the disposition to impose additional collection of KRW 41,625,00,00, and the disposition to restrict payment of subsidies for employment security from December 4, 2009 to August 26, 201, shall be revoked in entirety.

Reasons

1. Details of the disposition;

A. From May 24, 2008, the Plaintiff operated a "C Customs Office" as from May 24, 2008 to 205 of the Busan Jung-gu B Building, and operated a "E Customs Office" as from May 31, 2010 to the North-gu D in Port.

B. On September 10, 2009, the Plaintiff submitted a plan for employment maintenance measures to the Busan Regional Employment and Labor Agency on September 10, 2009, and received the total amount of KRW 15,262,500,00 for five months from December 4, 2009 to March 29, 2010 from the above Labor Agency as follows.

A person shall be appointed.

C. On August 27, 2010, the Defendant issued an administrative appeal against the Plaintiff, including F, G, H, and I’s provision of labor for a period from September 2009 to February 2010, on the ground that the Plaintiff received employment support payment from the Plaintiff, and accordingly, issued an additional collection of KRW 74,925,00 (i.e., the amount of illegal receipt and additional collection of KRW 15,262,50 + the amount of additional collection of KRW 59,62,500 + the amount of additional collection of KRW 59,62,50) and the amount of the subsidies to the Plaintiff from December 4, 2009 to August 26, 201, the Defendant issued an order to impose additional collection of KRW 20 to the Plaintiff on the grounds that the Plaintiff received employment support payment for the period from September 9, 201 to February 26, 2011.

A person shall be appointed.

E. Accordingly, on September 6, 2011, the Defendant notified the Plaintiff of the imposition disposition of KRW 56,887,500 in total, including the amount of illegal receipt (i.e., the amount returned to the illegal receipt + KRW 15,262,500 + the amount additionally collected + KRW 41,625,000) and the period of restriction on the payment of subsidies (i.e., the period from December 4, 2009 to August 26, 201) (hereinafter the Defendant’s initial disposition on August 27, 2010, excluding the portion revoked by an administrative appeal).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 4, Eul evidence 1 to 14, and the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

A. The Plaintiff knew that the employee was not at work during the period of leave, and thus, did not receive the concept of the “temporary retirement” by fraudulent or other illegal means, and the Plaintiff did not know that the employee was not at work but did not receive the phone and customs fee from the business partner during the temporary retirement.

B. Even if a worker during a leave of absence is provided with labor, the scope of return of subsidies and additional collection should be limited to the subsidy corresponding to the day on which he/she actually provided labor, it is unlawful to order the return and additional collection of all subsidies during the leave of absence.

C. Even if the total amount of subsidies received by the Plaintiff falls under an illegal receipt, the disposition imposing additional collection amounting to two to five times the employment maintenance support payment and the disposition imposing a restriction on payment is unlawful by abusing and abusing discretion.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

Sanction against a violation of administrative laws is a sanction against the objective fact that is contrary to the administrative laws and regulations in order to achieve the administrative purpose, and thus, barring any special circumstance, such as where a failure to perform the duty of the violator is not attributable to the failure of the violator, there is no intention or negligence on the part of the violator (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003).

In full view of the following circumstances recognized by the evidence Nos. 5-1 through 8, 10, and 5-10 (the stated evidence Nos. 3 through 8 are insufficient to reverse the above recognition), F, I, H, and G, a worker subject to leave, provided labor during the period of leave, and the Plaintiff received employment maintenance support payment even though he knew or could have known that the worker subject to leave had provided labor during the period of leave. Thus, the Plaintiff’s assertion is without merit.

(A) The Plaintiff’s work, who is an internal secretary, was managed by customs declaration, export/import license, etc., and the document was directly prepared for eight companies, including J, K, L, and M, which are business partners, but during the period of leave, the Plaintiff’s office was contacted with the employees of the Plaintiff during the period of leave. During the period from October 2009 to March 201, during which the Plaintiff’s office was under leave of absence, the amount of KRW 400,000 to KRW 5,00,000 per month (such as customs duties, ancillary expenses, etc. necessary for the handling of duties) was received as one’s passbook.

(B) Before the Plaintiff’s temporary retirement, I, as assistant personnel for internal affairs, worked in the Plaintiff’s office only two to three days a week prior to the Plaintiff’s temporary retirement, and worked in the office other than the Plaintiff’s work. After the Plaintiff’s temporary retirement, N, Inc., a business partner, managed N, and did not work in the Plaintiff’s office, and performed the same work as before the Plaintiff’s temporary retirement. During the period from October 2009 to March 201, I received expenses from the Plaintiff’s licensed customs broker, who was the Plaintiff’s partner, as the passbook, and received customs clearance fees from the P, a business partner, and Q,

(C) The Plaintiff’s work as assistant personnel for internal affairs was delivered documents to the workplace and customs office. However, during the period of leave of absence, the Plaintiff’s work was sent to the Plaintiff’s company and subcontractor for customs clearance fees, loading and unloading expenses, etc., and documents sent to the company. During the period from October 2009 to March 2010, the Plaintiff received customs clearance fees, loading and unloading expenses, etc. from the Plaintiff company, S company, T company, U.S. company, V company, passenger company, and X company, etc. as its passbook.

(D) The Plaintiff’s work as assistant personnel for internal affairs was cleared of customs. During the period of temporary retirement, the Plaintiff’s contact with the Plaintiff’s office, instructed the customer company, Z company, AAB company, AB company, and AC company to work at the Plaintiff’s office, and when there is an urgent reason, the Plaintiff was working at the Plaintiff’s office. As such, the Plaintiff was in a usual telephone, the Plaintiff was engaged in the same work as before the temporary retirement, and the Plaintiff received customs fees from AC company, AA company, etc. as its passbook for the period from October 209 to March 2010.

B. Determination as to the Plaintiff’s assertion No. 2.B

As seen earlier, F, I, H, and G, a person subject to leave of absence, only the number of days worked at the Plaintiff’s workplace, and only those who worked before and after the Plaintiff’s leave of absence, performed the same work as that performed before the leave of absence by telephone, deposit passbook, etc., and the Plaintiff’s assertion is without merit. Determination of the Plaintiff’s assertion is based on

(1) Article 35(1) of the Employment Insurance Act provides that "the Minister of Employment and Labor may order a person who has received a subsidy by fraud or other improper means to return the subsidy, as prescribed by Presidential Decree." Considering the purpose and purpose of employment security activities, the content thereof, etc., it is reasonable to deem that the Minister of Employment and Labor has delegated the Presidential Decree as to whether a return order should be necessarily made if there is an improper act. However, Article 56(1) of the former Enforcement Decree of the Employment Insurance Act (wholly amended by Presidential Decree No. 22603, Dec. 31, 2010) provides that "the return of the subsidy shall be ordered pursuant to Article 35(1) of the Employment Insurance Act" and the main sentence of Article 35(2) provides that "the person who has received the subsidy by fraud or other improper means shall not be paid the subsidy for one year from the date on which the return order under paragraph (1) was issued." Thus, the Plaintiff's disposition of restricting the payment of the subsidy in this case constitutes a continuous act (see Supreme Court Decision 2005Du674.

(2) Article 35(2) of the Employment Insurance Act provides that "in addition, where a return order is issued pursuant to paragraph (1), an amount not exceeding five times the amount received by false or other unlawful means may be collected in accordance with the criteria prescribed by Ordinance of the Ministry of Employment and Labor." Thus, the imposition of additional collection among the instant disposition is discretionary act. (1) In light of the following, the disposition of this case is a discretionary act: ① To eradicate the illegal act committed by a business owner who abused the employment maintenance support system by unlawful means; ② to protect the financial interest of employment insurance; and the need for sanctions as an act that seriously undermines the public interest of employment insurance system; ② to require strong demand; ② to perform the same work as before the Plaintiff’s temporary retirement even during the Plaintiff’s temporary retirement; ③ to receive subsidies, the Plaintiff’s total amount of KRW 15,262,500, the need for public interest to achieve the disposition of this case’s case’s; thus, even if considering the various circumstances of the Plaintiff, the Plaintiff’s assertion that the additional collection disposition of this case is beyond the discretionary power or abused.

5. Conclusion

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