(영문) 인천지방법원 2015.6.4.선고 2014구합3277 판결

1. On February 24, 2014, the Defendant’s disposition of ordering the Plaintiff to return unemployment benefits amounting to KRW 998,080,000, in excess of KRW 71,290,00, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

Purport of claim

The defendant's order to return unemployment benefits to the plaintiff on February 24, 2014 is revoked.

Reasons

1. Details of the disposition;

A. On December 16, 2013, the Plaintiff retired from the New Annannany Co., Ltd., Ltd., and on December 27, 2013, upon applying for recognition of eligibility for employment insurance to the Defendant, the Plaintiff recognized eligibility for benefits of KRW 150 days for the fixed benefit payment and KRW 35,645.88, and was paid KRW 1,283,240 as follows from January 10 to February 7, 2014.

A person shall be appointed.

B. On February 24, 2014, the Defendant issued an order to return job-seeking benefits amount of KRW 998,080 (the amount illegally received, KRW 71,290, KRW 926,790) that was illegally received during the period subject to recognition of the secondary unemployment pursuant to Article 62 of the Employment Insurance Act and Article 104 Subparag. 2 of the Enforcement Rule of the same Act on the ground that the Plaintiff received job-seeking benefits without filing a report, on February 6, 2014, on the ground that he/she was employed in the Koi Comprehensive Management Co., Ltd. (hereinafter “instant company”).

C. On March 31, 2014, the Plaintiff dissatisfied with the instant disposition and requested an examination to an employment insurance examiner, but was dismissed on May 15, 2014. On August 4, 2014, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee, but was dismissed on September 24, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 2, and 5 through 9, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On February 6, 2014, the Plaintiff worked for the instant company as a day after being employed in the instant company, and thus, the instant disposition that, even though the amount of job-seeking benefits was only one day, the amount of job-seeking benefits received during the period subject to recognition of unemployment would be returned to the entire amount of KRW 98,080,000, is harsh and unlawful.

(b) Related statutes;

Judgment on the attached Acts and subordinate statutes

C. Determination

1) Determination as to the existence of grounds for disposition

Article 47 (1) of the Employment Insurance Act provides that an eligible recipient shall report to the head of an employment security office when he/she provides labor during the period subject to verification of unemployment, and Article 62 (1) of the same Act provides that the head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means to return all or part of the benefits paid.

With respect to the instant case, even though the Plaintiff was employed in the instant company on February 6, 2014 during the period of unemployment benefits, the fact that the Plaintiff received job-seeking benefits without filing a report thereon is as seen earlier. Even if the actual number of days of employment is only one day, so long as the Plaintiff was paid job-seeking benefits by attending the unemployment recognition and filing an application for unemployment recognition without filing a report on the fact that the Plaintiff provided labor within the period subject to unemployment recognition, it shall be deemed that the Plaintiff received job-seeking benefits by "any false or unlawful means", and it shall not be deemed that only the number of days for which the Plaintiff did not provide labor does not constitute "any false or unlawful means"

2) Determination on deviation from and abuse of discretionary power

A) According to Article 62(1) of the Employment Insurance Act, the head of an employment security office may order a person who received job-seeking benefits by fraud or other improper means to fully or partially return all or part of the job-seeking benefits paid to him/her, and thus granting discretion to the Defendant in determining whether to exercise the order to return job-seeking benefits and the amount to be returned. However, despite the absence of delegation provisions under Article 62(1), Article 80 Subparag. 1 of the Enforcement Decree of the Employment Insurance Act and Article 104 Subparag. 2 of the Enforcement Rule of the same Act stipulate that the return of the job-seeking benefits paid for the period for the recognition of unemployment should be ordered if the person fails to report or falsely reports the fact that he/she provided labor during the period subject to the recognition of unemployment, but this is deemed to have presented the standard for return of job-seeking benefits. Therefore, it cannot be deemed that the order to return

B) As to KRW 71,290 among job-seeking benefits received by the Plaintiff

In light of the following circumstances, the Plaintiff applied for job-seeking benefits by means of preparing and submitting an application for the recognition of unemployment (Evidence No. 2). The Plaintiff appears to have sufficiently known that the Plaintiff would have been employed due to the scheduled date of employment or employment, company name, and telephone number of the Plaintiff’s application. (2) The Plaintiff received job-seeking benefits without stating the employment of the instant company prior to the unemployment recognition date; (3) at least KRW 71,290 of the amount of job-seeking benefits paid after the Plaintiff was employed; (4) the amount of reimbursement of the amount of job-seeking benefits paid after the Plaintiff was employed is strong; and (4) there is no evidence to deem that the Plaintiff’s order to return KRW 71,290 is too harsh in light of the purpose of the Employment Insurance Act’s economic and social development by facilitating the workers’ livelihood stability and job-seeking activities; and (4) the disposition of return order against KRW 71,290 of the amount of job-seeking benefits, which the Plaintiff violated the principle of proportionality and discretion.

C) Of the job-seeking benefits received by the Plaintiff, the following circumstances can be revealed by the overall purport of each evidence and arguments, i.e., (i) the number of days employed and actually employed in the instant company on February 6, 2014, which was the unemployment recognition date, immediately before February 7, 2014; (ii) the Plaintiff voluntarily reported to the Defendant the fact that he was employed in the instant company on February 10, 2014, which was after the date of unemployment recognition; (iii) if the period subject to unemployment recognition was shorter than the period, the Plaintiff could have received full job-seeking benefits for the said period; and (iv) job-seeking benefits were to contribute to economic and social development by providing necessary benefits in the event of unemployment; and (v) the Plaintiff’s aforementioned grounds for violating the Employment Insurance Act, which did not go against the purpose of the return order of job-seeking benefits to the Plaintiff during the second month period of job-seeking benefits, and thus, were unlawful in full view of the purport of the return order of job-seeking benefits.

D) Sub-determination

Therefore, the part exceeding 71,290 won of the instant disposition is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.