(영문) 서울행정법원 2011.4.7. 선고 2010구합37254 판결

The defendant's disposition rejecting the payment of employment maintenance support payment made against the plaintiff on December 21, 2009 is revoked.

Reasons

1. Details of the disposition;

A. On June 29, 2009, the Plaintiff submitted a report on a plan for employment maintenance measures ( human resources reallocation) to the Defendant, and its main contents are as follows.

(1) Location: Housing C in Yeongdeungpo-gu Seoul Metropolitan Government

(2) Type of business as at the time of planning and reporting: Program development (type of business: 58221 (system software development and supply business), main product: Personnel and accounting information system).

(3) The number of insured workers as at the time of reporting the plan: 12 persons.

(4) Type of business to be converted: Information service business code: 6391 (Database and Online Information Manufacturing Business), main products: Specialized Insurance Sales and Settlement System ASP business (hereinafter referred to as "business to be converted in this case").

5. The number of insured workers scheduled to rearrange human resources: Seven persons;

(6) The scheduled date of completion of reallocation of human resources: October 31, 2009.

(7) Expected expenses incurred in installing facilities: 60 million won.

(8) Reasons for employment maintenance measures: ASP project for the settlement system is converted into the settlement system ASP project due to a decrease in demand and a decrease in competitiveness in the field of establishment of the personnel and accounting information system, or a increase in demand for the settlement system due to the establishment of a specialized examination selling company according to the amendment to the Insurance Business Act.

(4) Methods of utilizing human resources after taking measures for retaining employees: To rearrange seven persons into the category of main business converted.

B. According to the investment details for the instant conversion business submitted by the Plaintiff to the Defendant on June 30, 2009 upon the Defendant’s request, the Plaintiff planned to lease a server necessary for the development of the instant conversion business for the instant conversion business, and purchase the program dispute (GAUEAC) and database (S QL-205). On November 27, 2009, the Plaintiff submitted a report on the completion of the employment maintenance measures ( human resources redisposition) to the Defendant on November 27, 2009, and stated that the Plaintiff paid KRW 20 million for the installation cost of the facility (facilities).

D. The Plaintiff, until October 31, 2009, completed the reorganization of human resources by the instant conversion project for seven insured workers, and applied for the payment of KRW 13,406,240 to the Defendant on December 18, 2009, when it paid wages of KRW 17,875,000 to the re-registered insured workers. E. The Defendant, before submitting the report of the plan for employment maintenance measures (personnel relocation), has already promoted the work by re-transfering the workers to the instant conversion project and purchased the dispute against the said report, on the ground that the Plaintiff did not purchase it and did not implement it as the said report (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 2, 3 evidence, Eul 1, 2, and 3 evidence, and the purport of the whole pleadings

A. The plaintiff's assertion

1) The Plaintiff did not engage in the converted business in advance before submitting a report on the plan for employment maintenance measures (personnel relocation) to the Defendant, but only conducted a feasibility study on the converted business, and re-transfered the employees in the instant converted business after submitting the said report.

2) At the time of completing the reorganization of human resources in the instant conversion business, the Plaintiff purchased and installed facilities necessary for the instant conversion business. However, only the sales business operator did not pay the purchase price.

(b) Related statutes;

It is as shown in the attached Table related statutes.

1) Around February 2009 between the Plaintiff and the Plaintiff and the Insurance Company D and E, an agent for the insurance company, a contract for the establishment and maintenance of a regulation fee settlement system and a contract for the establishment and maintenance of a contract for the repair and maintenance of the system at KRW 600,000,000 per month, which is the Plaintiff’s establishment of a regulation fee settlement system, contract contents inquiry, personnel information, statistical output, website system, etc. for each of the above companies.

2) On May 28, 2009, the Plaintiff submitted a estimate for the cost of building the ASP system to the F Association (G insurance product sales agency association). This includes input personnel, software, and hardware necessary for development. The development cost by each branch is KRW 200,000 per day, and the maintenance cost is KRW 300,000 per month.

3) A tax invoice with the purport that the Plaintiff purchased at KRW 8,360,000 from H Co., Ltd. for purchase of KRW 8,000,000, and a tax invoice with the purport that the Plaintiff purchased KRW 11,000,000 from R Co., Ltd. was prepared on October 31, 209 (According to the evidence No. 7, the above tax invoice prepared by H Co., Ltd. was prepared on December 16, 2009, and the Plaintiff asserts that the tax invoice was prepared around that time).

4) On December 3, 2009, the employee who was placed in labor at the time was working in the second floor F Association office of the Seocho-gu Seoul High Building, Seoul, which was not the Plaintiff’s business place, and the Plaintiff was using the server necessary for the conversion business in paying monthly rent from K, and the program contest, database, and database was used as the authority of Triman’s license. In addition, on December 28, 2009, the Plaintiff filed an administrative appeal against the instant disposition with the Central Administrative Appeals Commission on December 28, 2009, and submitted the said tax invoice to the employee in charge of the Defendant, and thereafter, on February 26, 2010, the Plaintiff filed an administrative appeal against the instant disposition, with the purport that the Plaintiff transferred KRW 8360,000 to H corporation on April 10, 2010, KRW 170,000, KRW 710,0000, KRW 7360,000.

D. Determination

1) According to Articles 21(1) and 115 of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010); Articles 19(1)4, 20(2) and (3), 21(1)4, 21(2), and 145(1)5 of the Enforcement Decree of the same Act (amended by Act No. 1039, Jun. 4, 2010; hereinafter the same shall apply) of the same Act, an employment security office delegated by the Minister of Labor shall install or maintain facilities or equipment necessary to convert a business to a new type of business falling under the category of sub-classification under the Korean Standard Industrial Classification Table; where an employment security office fails to dismiss the insured through an adjustment in employment after taking measures to rearrange at least 50/100 of the insured at the time of reporting the plan for employment maintenance, it shall be paid to the employer within one year after the date of reporting the plan for employment maintenance to the insured; and where the employer fails to change the plan within one year after completing.

2) Determination on the Plaintiff’s first argument

According to the relevant laws and regulations, a business owner shall establish a plan for employment maintenance measures and report it to the defendant, and whether the plaintiff has already been performing the business by relocating human resources in the converted business in this case prior to the above report.

According to the evidence evidence No. 10, the plaintiff submitted a statement of employment maintenance measures to the effect that "the plaintiff leased the server to the defendant from April 8, 2009 to October 31 of the same year". However, the following circumstances revealed by the above facts of recognition, i.e., the contract concerning the establishment of the settlement system with D and E companies around February 2009, but it is difficult to conclude that the above business was a kind of business for the conversion project (the plaintiff's existing business is to develop software in line with the specific business, and the conversion business was to be registered with the Association as members, and it is difficult to view that the above written statement of employment maintenance measures was submitted to the defendant about the above business for the representative director of the contract (the above contract was submitted to the Association around May 1, 200 to the extent that the above written statement of employment maintenance measures was not submitted to the representative director of the contract, and it is difficult to see that the plaintiff submitted a written estimate that the above business was a type of business for the conversion project.

Therefore, this part of the disposition of this case is unlawful.

3) Judgment on the second argument of the Plaintiff

Employment maintenance support payment is to support a business owner who maintains employment of workers by investing in facilities and equipment for the conversion of type of business when it is difficult to maintain employment of workers due to business management and economic circumstances. According to the relevant Acts and subordinate statutes, in order to obtain employment maintenance support payment by converting into the instant conversion project, the Plaintiff shall establish and implement a plan for employment maintenance measures including the details of installation or maintenance of necessary facilities and equipment in advance, and if it is intended to change matters concerning the above facilities and equipment, it is necessary to report to the Defendant in advance. It seems that the Defendant would be able to review the appropriateness and feasibility of the plan for employment maintenance measures and to determine whether to pay employment maintenance support payment for one year from the time when the implementation is completed in accordance with the plan for employment maintenance measures.

However, according to the plan report, etc. of employment maintenance measures submitted by the Plaintiff to the Defendant, the Plaintiff entered the expected cost as KRW 60,000,000 when it decided to purchase the program dispute and database. In order to modify such plan, the Plaintiff reported in advance to the Defendant and subsequently performed it in accordance with the revised plan. However, it is difficult to view that the Plaintiff performed the employment maintenance measures in accordance with the original plan, on April 10, 201, when it submitted a report on completion of employment maintenance measures ( human resources re-transfer) on November 27, 2009, the Plaintiff used the program dispute and database at the time of completing the replacement of human resources without filing such report.

Therefore, this part of the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.