2013Guhap 11394 Revocation of illegal receipt and payment of employment maintenance support payment, etc.

A Stock Company

The Administrator of the Incheon Northern District Office of Central Employment and Labor;

October 16, 2015

November 13, 2015

1. The Defendant’s order for return of employment maintenance support payment and disposition for additional collection against the Plaintiff on October 17, 2012 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Two-thirds of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Order No. 1 and the Defendant’s order for return of employment maintenance support payment and disposition for additional collection against the Plaintiff on October 17, 2012, and disposition for refusal of payment of employment maintenance support payment in 2012 is revoked.

1. Details of the disposition;

A. B operated as an individual entrepreneur C, who is engaged in manufacturing and wholesale and retail business between the actual contents, and changed the trade name of the corporation into “C” corporation on January 2, 2009, and changed the name of the corporation into “A” corporation as of October 6, 2010.

(b) Payment of subsidies for maintaining employment, 209;

1) On January 21, 2009, the Plaintiff submitted a report on a plan for employment maintenance measures (i.e., "employment maintenance measures" (i., replacement of human resources) stating that the Plaintiff would convert the business from the existing manufacturing business, service business, or wholesale and retail business to the engineering service business and telecommunications sales business and re-transfer human resources, and that the Plaintiff would reduce sales and human resources productivity due to the reduction of sales volume caused by the recent economic depression (i.e., the time when a report on a plan for employment maintenance measures was submitted) (i.e., "209", "employment maintenance support payment for 2010", "employment maintenance support payment for 2010", and "employment maintenance support payment for 2012"). Then, on April 15, 2009, the Plaintiff submitted to the Defendant a report on the completion of employment maintenance measures (i.e., replacement of human resources) by four existing five workers from the manufacturing business, service business, and wholesale and retail business.

3) The Plaintiff applied for the payment of the employment maintenance support payment to the Defendant, and the Defendant, from June 29, 2009 to June 22, 2010, paid KRW 47,680,000 as the name of the employment maintenance support payment to the Plaintiff. The payment of the employment maintenance support payment was made in 2010.

1) On June 18, 2010, the Plaintiff submitted a report on a plan for employment maintenance measures (personnel re-disposition) stating that “the closure, relocation, and decrease of sales according to the D redevelopment plan” under the grounds for employment maintenance measures, while converting the business into the business to the Defendant and relocating the human resources to the business.

2) On November 201, 2010, the Plaintiff submitted to the Defendant a written report on the completion of employment maintenance measures (disposition of human resources) by re-transfering 10 of the existing 12 employees to the part of the previous 12 employees.

3) The Plaintiff applied for employment maintenance support payment to the Defendant, and the Defendant paid KRW 109,890,000 as the name of employment maintenance support payment to the Plaintiff from January 1, 2011 to December 23, 2011. D. The plan and completion report on employment maintenance measures in 2012

1) On March 28, 2012, the Plaintiff submitted a written report on a plan for employment maintenance measures (human resources re-disposition) stating that the Defendant will convert the business from the existing physical training to the human resources dispatch business and video processing business, and re-transfer the human resources to the human resources, which states that the reasons for employment maintenance measures include the reduction of operating income, the increase of liabilities, and the difficulties and profitability of the employees due to the limited implementation of the business.

2) After that, on May 10, 2012, the Plaintiff: (a) transferred 15 existing employees to the Defendant for physical training; and (b) submitted a written report on the completion of employment maintenance measures.

E. On October 17, 2012, the instant disposition Defendant ordered the Plaintiff to return the employment maintenance support payment that was illegally received and additionally pay an amount equivalent to twice the amount received as follows, on the grounds that there was no circumstance to deem that such adjustment was inevitable due to the reduction of sales amount, etc., and issued a disposition restricting the payment of employment maintenance support payment for one year from the date of the disposition (hereinafter “the instant disposition”).

A person shall be appointed.

A person shall be appointed.

F. The Plaintiff appealed and filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on July 9, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 4, 5, 8, 9, and the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. The defendant's assertion

In relation to the employment maintenance support payment for the Plaintiff in 2012, the Plaintiff did not apply for the employment maintenance support payment for the Plaintiff and the Defendant did not impose a disposition rejecting the employment maintenance support payment for the Plaintiff in 2012.

Therefore, among the lawsuit in this case, the part that the Plaintiff sought revocation of the payment refusal of employment maintenance support payment in 2012 is unlawful as it targets non-existent disposition.

B. Determination

According to Article 29(2) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 81 of April 24, 2013), Article 19(1)4 of the Enforcement Decree of the Employment Insurance Act provides that a business owner who takes measures for employment maintenance shall apply for the payment of the amount of the right to maintain employment after taking the measures for employment maintenance.

Meanwhile, Article 20(1) and (3) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 24514, Apr. 22, 2013) provides that a business owner who intends to obtain employment maintenance support shall establish a plan for employment maintenance measures, report the plan, and report the completion of replacement of human resources within one year and six months from the date of the report. Therefore, even though the Plaintiff did not apply for employment maintenance support, the Plaintiff’s act of reporting the plan and completion of employment maintenance measures is limited to the application for employment maintenance support, thereby undermining the application for employment maintenance support, and the Defendant also conducted an examination to verify whether the Plaintiff was eligible for employment maintenance support support payment in 209 and 2010, thereby resulting in the instant disposition by re-examination as to whether it was legitimate for the Plaintiff to receive employment maintenance support payment in 209 and 2010.

It is reasonable to interpret that the Plaintiff’s disposition has the meaning of the disposition of refusal to grant employment maintenance support payment in 2012. Moreover, the Plaintiff’s assertion that there was a disposition of refusal to grant employment maintenance support payment payment in 2012 in the instant lawsuit can be understood as a dispute over the disposition of suspension of employment maintenance support payment out of the instant disposition. Accordingly, the Defendant’s defense of safety support payment is without merit.

3. Determination on the lawfulness of the instant disposition

A. The plaintiff's assertion

Although the Plaintiff fell under the eligibility for employment maintenance support payment at the time of application for each employment maintenance support payment in 2009 and 2010, the instant disposition taken on the ground that the Defendant did not have any circumstances to deem that the employment adjustment was inevitable to the Plaintiff and did not conduct business conversion should be revoked as unlawful.

B. Relevant statutes

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

C. Determination

1) Determination as to whether the payment of employment maintenance support payment in 2009 constitutes an illegal receipt

A) Facts of recognition

(1) On January 21, 2009, the Plaintiff submitted a written report on a plan for employment maintenance measures (human resources re-transfer) stating that the Defendant would convert the business into the existing manufacturing business, service business, or wholesale and retail business, and re-transfer the human resources, and that the reason for employment maintenance measures is "the reduction of sales and human resources productivity due to the reduction of sales volume due to the reduction of sales volume caused by the economic depression."

(2) At the time of reporting a plan for employment maintenance measures, the Plaintiff submitted a comparison table of sales and a purchase/sale statement as evidentiary documents, and reported sales as follows.

A person shall be appointed.

(3) In December 2008, the Defendant: (a) decided that KRW 1,805,455 of the Plaintiff’s sales revenue of December 2008, which was the base month (the month immediately preceding the month in which the first day of taking measures for retaining employees, was reduced by 64% compared to the Plaintiff’s sales revenue of KRW 5,00,000,000 in the immediately preceding month; and (b) provided the Plaintiff with subsidies for retaining employees in 2009 as stated in the above paragraph (3). (d) The Defendant received the subsidies for retaining employees by the due date of the payment of the subsidies for retaining employees (one year) under the Act on 209, 2010, and submitted a report and a completion report for applying for subsidies for retaining employees in 2012, and subsequently conducted on-site inspections.

(5) As a result of the Defendant’s actual inspection, the fact that the Plaintiff reported the sales falsely, and the actual sales amount of the Plaintiff is as follows (Evidence A No. 8-2).

A person shall be appointed.

(6) In addition, even after the completion of employment maintenance measures, the Plaintiff continued to engage in the manufacturing business and service business other than the telecommunications sales business such as assembling and manufacturing equipment and selling online. The Plaintiff’s certified transcript of corporate register also remains without deleting the manufacturing business of sports equipment in the “purpose” column, and at the time of submitting a report on the plan for employment maintenance measures in 2010, the name of the type of business is also the manufacturing business, service business, and wholesale retail business.

(7) Meanwhile, in 2009, the number of employees (the insurer) was five at the time the Plaintiff submitted the report on the plan for employment maintenance measures, but the number of employees was increased by 11 at the time of submitting the report on the completion of employment maintenance measures.

[Ground of recognition] Facts without dispute, Gap evidence 2 to 8, Eul evidence 1 to 3 and 7, the purport of the whole pleadings

B) Determination

The following circumstances acknowledged by the above facts are as follows: ① The plaintiff does not constitute a case where the plaintiff's business is converted to a new category of business belonging to another category of sub-classification in the category of sub-classification in the Korean Standard Industrial Classification Table by operating a business with the maintenance of the existing manufacturing business and service business, and ② the sales of the standard month did not decrease by more than 10/10 compared to the monthly average sales of the immediately preceding month or the standard monthly sales of the three months immediately preceding the month, and it is difficult to evaluate the plaintiff as a business owner whose adjustment of employment was inevitable due to the abolition or reduction of sales and the increase of the number of employees, etc. of some departments of the business without discontinuance of part of the existing business, or because it is difficult to see that the number of employees has been reduced or that it is difficult to evaluate the plaintiff as a business owner whose adjustment of employment has been inevitable.

Therefore, it is reasonable that the Plaintiff received the employment maintenance support payment in 2009 by fraud or other improper means, and that the Defendant ordered the Plaintiff to return the employment maintenance support payment received from the Plaintiff in 2009 and additionally collects the amount equivalent to twice that amount.

Ultimately, this part of the plaintiff's assertion is without merit.

2) Determination as to whether the payment of employment maintenance support payment in 2010 constitutes illegal receipt

A) Facts of recognition

(1) On June 18, 2010, the Plaintiff submitted a report on a plan for employment maintenance measures (disposition of human resources) to the Defendant, stating that he/she will convert the business into physical training in the existing manufacturing industry, service industry, and wholesale and retail business, and rearranges human resources, and that he/she will close the place of business in accordance with the D redevelopment plan, relocate the place of business, and reduce sales.

(2) At the time of reporting the plan for employment maintenance measures, the Plaintiff submitted the comparison table of sales and the purchase sales statement as evidentiary documents, and reported sales as follows.

A person shall be appointed.

(3) The Defendant determined that the Plaintiff constituted a business owner eligible for employment maintenance support, and provided the Plaintiff with employment maintenance support payment in 2010 as stated in the above 1.c. (3).

(4) The Defendant submitted a report on employment maintenance plan and a completion report for one year after receiving the employment maintenance support payment for one year, which was set by law in 2009 and 2010. As such, the Defendant submitted a report on employment maintenance plan and a completion report to apply for employment maintenance support in 2012, and conducted a field inspection.

(5) As a result of the Defendant’s actual inspection, the fact that the Plaintiff reported the sales falsely, and the actual sales amount of the Plaintiff is as follows (Evidence A No. 8-2).

A person shall be appointed.

(6) Around July 2010, the Plaintiff: (a) leased the 47m square meters of the first floor of the building of Bupyeong-gu Incheon, Bupyeong-gu, Incheon at KRW 47,00,00 per month (the purpose of a warehouse); (b) around August 2010, the third floor of the same building at KRW 2.5 million per month; and (c) around December 2010, the second floor of the same building at KRW 126.29m square meters per month (the purpose of office and sports facilities); (d) on November 2010, the Plaintiff leased the 1,330,000 square meters of the first floor of the building of Yeongdeungpo-gu, Seoul; (e) leased the 252m square meters of the first floor of the building to the 3,42m square meters per month (the purpose of the office and sports facilities); (e) leased the building to the 3,400,000 square meters per month (the number of employees in office and sports facilities).

(7) Meanwhile, the number of employees (the insurer) was 12 at the time the Plaintiff submitted a report on the plan for employment maintenance measures in 2010, but the number of employees was increased by 21 at the time of submitting the report on the completion of employment maintenance measures.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 8, Eul evidence 4, 5, and 6, the purport of the whole pleadings

B) Determination

The following facts acknowledged by the above facts are as follows: ① The plaintiff submitted a report on the plan for employment maintenance measures ( human resources reallocation) in 2010 and installed facilities and equipment necessary therefor; ② there is no evidence to deem that the plaintiff did not conduct physical training by converting the business into physical training; ③ there is no evidence to support that the plaintiff's sales analysis data submitted by the plaintiff and the actual sales revealed by the investigation agency are 32,176,145 won as of April 201, the base month immediately preceding the month when the plaintiff's sales are 32,176,145 won as of May 2010, and the three months immediately preceding the base month as of February 2010 to April 4, 2010. In light of the above, the plaintiff is eligible for employment maintenance support payment.

Therefore, it is difficult to view that the Plaintiff received the employment maintenance support payment in 2010 by fraud or other improper means, and it is unlawful to order the Defendant to return the employment maintenance support payment received from the Plaintiff in 2010 and additionally collect an amount equivalent to twice that amount. Therefore, the Plaintiff’s assertion on this part is with merit.

3) Determination as to the legitimacy of a disposition rejecting payment of employment maintenance support payment in 2012

A. First of all, it was found that the Plaintiff received subsidies for maintaining employment in 2009 by fraud or other improper means, and it was justifiable to order the Defendant to return the subsidies received from the Plaintiff in 2009 and additionally collect an amount equivalent to twice the amount. Therefore, it is legitimate to deny the payment of subsidies pursuant to Article 35(1) of the former Employment Insurance Act (amended by Act No. 13041, Jan. 20, 2015) and restrict the payment of subsidies for maintaining employment in 2012 and restrict the payment of subsidies for one year from the date of disposal.

B. In addition, according to Gap evidence Nos. 4, 5, and 6, the plaintiff prepared a transfer contract to transfer a sports center to G on May 1, 2012. G was a pro-friendly type of H registered as the plaintiff's employee on May 1, 2012, and prepared a transfer contract to the effect that it should re-contract with the plaintiff with respect to all matters concerning human resources, management, and operation. ② The plaintiff prepared a transfer contract to transfer a sports center to I on March 7, 2012, which did not operate a business entity since March 1, 207, which did not carry out all matters concerning human resources, management, and operation with the plaintiff, ③ The transfer contract is established with the purport that the plaintiff did not carry out a new contract to re-contract with the plaintiff, ③ it is acknowledged that the plaintiff still carried out a transfer contract to maintain the sports facility or the temporary placement of human resources for the purpose of checking the difference between the plaintiff's employees in his/her work site and his/her new work site,

Comprehensively taking account of such facts acknowledged, the Plaintiff is not eligible for subsidies for maintaining employment since it did not install or maintain facilities or equipment necessary to convert its business into a new type of business. Therefore, it is lawful for the Defendant to refuse to provide the Plaintiff with subsidies for maintaining employment in 2012.

4. Conclusion

Therefore, the part of the claim in this case seeking the cancellation of the order for return of employment maintenance support payment and the disposition for additional collection in 2010 shall be accepted, and the remaining claims shall be dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, the judge and the Dong judge

Judges are unable to affix a name or seal as a probationary leave.

The presiding judge

Judges

Judges Preferential-hun

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.