2012Nu407 Administrative disposition invalidation, etc.

A Stock Company

The Director General of the Daejeon Regional Employment and Labor Office

Daejeon District Court Decision 2010Guhap3864 Decided January 11, 2012

July 21, 2016

August 25, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant confirmed that (i) the Plaintiff’s non-performance of the subsidies, restrictions on payment, orders to return them, and additional collection, (ii) the determination of the site classification of experts in small and medium enterprises G related to G on April 30, 2010, (iii) the determination of the site classification of new employment promotion incentives related to B, C, and D on May 32, 2010, (iv) and (v) the determination of the site classification of the subsidies for reduction of working hours of small and medium enterprises on May 8, 2010, (v) the determination of the site classification of the subsidies for paid leave as of May 4, 2010, (v) the determination of the payment of unemployment benefits to the Plaintiff on May 8, 2010, (v) the determination that the Defendant applied for the change of the site classification for unemployment benefits to the Plaintiff on February 11, 2010, and (v) the determination that the Plaintiff applied for the change of the site classification for unemployment benefits to the Plaintiff on February 10, 2010.

2. Purport of appeal

Of the judgment of the first instance, the part against the defendant shall be revoked. The plaintiff's claim corresponding to the above revoked part shall be dismissed.

1. Scope of adjudication of this court;

The plaintiff and the defendant appealed each part of the judgment of the court of first instance against each of the losing parts. On May 24, 2012, the plaintiff corrected the other party to the claim for damages from the above defendant to the Republic of Korea (the claim amount was reduced to KRW 20 million to KRW 13 million), and on June 25, 2012, the plaintiff finally amended the claim against the defendant as stated in the above purport of claim, and completely withdraws all appeals against the part against the plaintiff lost on October 2, 2014, while the plaintiff additionally appealed the claim for revocation of the decision and the claim for damages against the Republic of Korea through the amendment of the above purport of claim at the trial of the court of first instance on November 28, 2014. The scope of the judgment of this court is limited to the above part of the judgment of the court of first instance, which is the part against the defendant in the judgment of the court of first instance to the extent of revocation of each decision

2. Details of the disposition;

The reasoning for this part of the judgment of the court of first instance is the same as that of the above part, except for the modification of part of the corresponding part of the judgment of the court of first instance as follows. Thus, this part shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

○ The former Employment Insurance Act (amended by Act No. 10337, May 31, 2010) in December 11, 2012 refers to the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; amended by Act No. 10339, Jun. 4, 2010).

○ To delete each of the two pages 13 and 14 "the same shall apply hereinafter."

In Chapter 4, "Enforcement Decree of the same Act" in Chapter 10 is "Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 9, 2010; Presidential Decree No. 22269, Jul. 12, 2010; hereinafter the same shall apply)", and "Enforcement Rule of the same Act" in Articles 10 and 11 of the same Act are "Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; amended by Ordinance of the Ministry of Employment and Labor No. 1, Jul. 12, 2010)", respectively.

○ Chapter 4, “B, C, and D.” through “B, C, and D.” were “B, C, and D.” up to “B” and “B, C, and D” were “B” and “B, C, and D” were also changed to “B, C, and D” as “B, C, D, and E-related specialized human resources during the period of the said restriction on payment; and on May 8, 2010, the relevant decision was also made to determine the site level for the use of the relevant specialized human resources for small and medium enterprises related to E during the said restriction on payment (hereinafter “each of the instant dispositions”).

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Each of the instant dispositions is unlawful in light of the fact that it is based on Article 35(1) of the former Employment Insurance Act and Article 56(2) of the former Enforcement Decree of the Employment Insurance Act, which is unconstitutional.

B. Determination

(1) On April 20, 2012, the Plaintiff filed an application with the competent court for adjudication on the unconstitutionality of Article 35(1) of the former Employment Insurance Act (amended by Act No. 2012A. 8, Apr. 20, 2012). This court accepted the application for adjudication on the unconstitutionality of statutes under Article 35(1) of the former Employment Insurance Act, and filed an application with the Constitutional Court for adjudication on the unconstitutionality of statutes under Article 2014Hun-Ga2 of the same Act. The Constitutional Court was amended by Act No. 9315, Dec. 31, 2016 by the unanimous opinion of all participating Justices (amended by Act No. 9315, Dec. 31, 2008; Act No. 10351, Jun. 4, 2010; Act No. 10651, Jun. 13, 2010>

(2) Therefore, the Defendant’s act of restricting the payment of various subsidies and incentives for one year from October 19, 2009, which is the date of payment of the instant issue, is unlawful as it is based on the provisions of the law that the Constitutional Court decided to be unconstitutional and the provisions of the Enforcement Decree accordingly, and thus, it cannot be avoided that each of the dispositions of the instant case on the ground that it is a restriction on the payment.

4. Conclusion

Therefore, each disposition of this case is unlawful, and all of them should be revoked. Since the part concerning each disposition of this case among the judgment of the court of first instance is justifiable, the defendant's appeal against this is dismissed as it is without merit. It is so decided as per Disposition.

Allowable judges of the presiding judge

Judges Kim Gin-han

Judge Park Jong-hoon

1) This seems to be a clerical error in May 4, 2010 (see evidence 8-1).

2) As set forth in Section 1 of the above Notes.

3) As set forth in Section 1 of the above Notes.

4) In full view of the purport of the entire pleadings, the final modified purport of the claim in the first instance trial, and the above ③ additional claim seeking revocation of the decision

I seem to have been doing so (see, e.g., Court Order No. 14 November 14, 2014, Plaintiff Order No. 11, 2014, Plaintiff’s partial withdrawal of action).

5) The above purport of claim 3, part 6, or part 2, 3, 4, 6, and 7 of the table of the non-paid incentives.

6) As set forth in Section 4 above.

A person shall be appointed.