(영문) 수원지방법원 2015.7.22.선고 2015나3898 판결

The judgment of the court of first instance is revoked. The defendants jointly and severally pay to the plaintiff 5,935,680 won with 20% interest per annum from the next day of service of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. On January 8, 2013, the Plaintiff filed an application for recognition of eligibility for employment insurance (employment benefits) with the head of the Nanyang Regional Labor Agency (hereinafter referred to as the “head of the Nanyang Regional Labor Agency”) on the ground that the Plaintiff was dismissed on June 29, 2012 after acquiring the insured status as an employee of B Co., Ltd. (hereinafter referred to as the “instant company”).

B. On March 13, 2013, the head of Ansan District Office revoked the Plaintiff’s employment notification qualification on the ground that the Plaintiff’s spouse, as the representative of the instant company, is not the insured of employment notification power (hereinafter “instant disposition”), and returned the employment insurance premium to the instant company after 201, but did not return it on the ground that the three-year extinctive prescription has already lapsed for the employment insurance premium from 2006 to 2010.

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

2. Judgment on the main defense of Defendant Korea Labor Welfare Corporation (hereinafter “Defendant Corporation”)

(a) argument that it constitutes subject matter of administrative litigation;

The defendant Corporation asserts that the disposition of this case in this case is subject to administrative litigation under the Administrative Litigation Act, and thus, it is unlawful for the plaintiff to seek it as a civil litigation.

In light of the records, the plaintiff does not seek the cancellation of the disposition of this case, but it is evident that the disposition of this case is claiming damages against the defendants on the grounds that it is a tort committed by public officials belonging to the defendants. As such, the claim for damages on the grounds of a public official's official's official's official's tort is a civil claim, and it does not require the civil procedure, and it does not require administrative litigation

B. The defendant Corporation's assertion that there is no standing to be a party

As the Minister of Employment and Labor confirms the acquisition and loss of insured status under Article 17 of the Employment Insurance Act, and the defendant Corporation only takes charge of the payment and collection of insurance premiums, the defendant Corporation asserts that the plaintiff does not belong to the party who is entitled to claim damages. In the lawsuit for performance, such as this case, the defendant Corporation has standing to sue and the person who claimed as the person who is obligated to claim as the person subject to performance, has standing to sue, and therefore, the defendant Corporation has no reason to claim this part.

3. Judgment on the merits

A. The plaintiff's assertion

The Plaintiff asserts, on the following grounds, that the Defendants’ collection of the Plaintiff’s employment insurance premium and revocation of the Plaintiff’s employment insurance premium constitutes a tort based on intention or negligence, and thus, the Defendants should jointly and severally pay the amount of unemployment benefits to the Plaintiff as well as damages for delay.

1) solely on the ground that the Plaintiff is the spouse of the representative C of the instant company, the Defendants’ revocation of the Plaintiff’s employment insurance qualification is unlawful as it did not have any legal basis.

2) Even if the Plaintiff did not have insured status, the Defendants had been paid employment insurance premium by including the Plaintiff to the employees of the instant company for at least eight years on the premise that the Plaintiff had insured status. Therefore, the instant disposition is unlawful as it violates the principle of trust protection.

3) The Defendants, while taking the instant disposition on the grounds that the Plaintiff cannot be deemed an employee of the instant company, did not clearly present the grounds and legal basis for the instant disposition at the time of the instant disposition. The instant disposition is unlawful as it violates Article 23(1) of the Administrative Stopping and Parking Act.

B. Determination

1) With respect to the assertion that there is no ground for the instant disposition, the Employment Insurance Act does not have the same provision as Article 2(1)1 of the Labor Standards Act concerning the definition of the employee, but in light of the title of the Employment Insurance Act and the type of suicide benefits, it is reasonable to deem that the employee under the Employment Insurance Act refers to the employee under the Labor Standards Act (see Supreme Court Decision 98Du2003, Apr. 24, 1998).

In addition, the determination of whether a worker is a worker under the Labor Standards Act, regardless of whether the form of the contract is an employment contract under the Civil Act or a contract for work, shall be made based on whether the worker provides labor in a subordinate relationship with the employer for the purpose of wages at the business or workplace. Determination of whether such a subordinate relationship exists should be made by comprehensively taking into account the following factors: (a) the content of the work is determined by the employer; (b) whether the worker is subject to the rules of employment or the regulations of service; (c) whether the worker is subject to the employer’s specific direction and supervision; (d) whether the working hours and place are designated by the employer; (e) whether the worker is subject to detention; (e) whether the worker has a substitute nature of the work by employing a third party; (e) ownership of raw materials, equipment, working tools; (e) whether the characteristic of remuneration is the object of the work itself; (e) whether the provision of labor is continuous and exclusive to the employer; and (e) whether the status of the worker is recognized by other statutes, such as social and economic conditions of both parties.

Considering the overall purport of each statement and argument of Gap's evidence Nos. 1, 4, 5, and Eul evidence Nos. 1 through 7 (including a serial number), the plaintiff asked on December 21, 2012 to the head of Ansan branch office that he/she is the representative Eul of the company of this case to find out whether he/she is eligible for employment insurance (vocational benefits). On the contrary, the public official in charge of Ansan branch office requested "the relatives living together with the business owner" to submit a "labor contract, detailed statement of account, work card or attendance card, income tax certificate or withholding certificate, etc.", "the data proving the employment relationship with the business owner as a matter of principle with the business owner and the person living together with the business owner," and it is acknowledged that the plaintiff received the benefit of this case from the outside head of the Tong branch office until 204 to 2012, and that the plaintiff was regularly present at the five-day branch office office of this case.

However, according to the above evidence, the plaintiff did not submit a written employment contract while entering into an oral employment contract with the company of this case. The plaintiff also failed to submit the plaintiff's actual working hours and materials to confirm whether to commute to and from work for the company of this case by asserting that the plaintiff was transferred to and retired from the company of this case by using the representative C motor vehicle of this case during the entire period of service at the company of this case. According to the details of passbook transaction, the amount of money deposited from the company of this case to the plaintiff's account around June 2004 and August 10, 2009, and more than 10 million won was deposited from the company of this case to C and D (the partner of this case of this case as a registration director of the company of this case) for several times, and there was no statement of transfer of money regularly from the company of this case to the plaintiff on the monthly payment date of wages. In light of the above circumstances, it is difficult to deem that the plaintiff provided labor for the purpose of wages in this case to the company of this case, and there is no other evidence to acknowledge it.

따라서 안양지청장이 원고가 근로자에 해당되지 아니하여 고용보험 피보험자격이 없다고 보고 이 사건 처분을 한 것이 위빕하다고 보기 어렵고, 달리 이를 인정할만한 증거가 없다. 원고의 이 부분 주장은 이유 없다.

2) To apply the principle of trust protection to the assertion that the act of an administrative agency violates the above principle of trust protection, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the public opinion opinion of the administrative agency should not be attributable to the individual; third, the individual should have trusted the opinion opinion that is contrary to the above opinion opinion list; third, the administrative agency should have conducted any act based on the trust of the individual; fourth, the administrative agency's disposition that is contrary to the above opinion list should result in infringing the individual's interest; last, the administrative disposition that is contrary to the above opinion list should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decisions 200Du8684, Sept. 28, 200; 2004Du4666, Jun. 9, 2006; 2004Du4666, etc.); and, in light of the legal principles as to the employment insurance insurance company's employment insurance company's reporting and payment to the plaintiff.

Therefore, since the Defendants cannot be deemed to have named any public opinion that is the subject of trust to the Plaintiff, this part of the Plaintiff’s assertion is without merit.

3) As to the claim of procedural illegality, Article 23(1) of the Administrative Procedures Act provides that when an administrative agency makes a disposition, the administrative agency shall present the grounds and reasons therefor to the parties. This purport is to exclude arbitrary administrative decision-making and allow the parties to properly cope with the administrative remedy procedure. Thus, in a case where it is sufficiently known that the parties concerned were made a disposition at the time of the disposition in full by taking into account the contents of the written disposition, relevant Acts and subordinate statutes, and the overall process, etc. up to the relevant disposition, and where it is deemed that there was no particular hindrance to the party’s appeal and moving into the administrative remedy procedure, the disposition cannot be deemed unlawful due to such failure to specify the grounds and reasons (see, e.g., Supreme Court Decision 2008Du6127, Oct. 9, 2008).

In light of the evidence No. 1, the head of Ansan branch office, while rendering the disposition in this case, stated that "the plaintiff's spouse is not subject to employment insurance, and the effect is revoked." However, the public official in charge of Ansan branch office, upon the plaintiff's inquiry, gave answers to the plaintiff that "the family relation with the business owner's living together is exceptionally recognized as employment insurance in case where it is clearly proved that "the family relation with the business owner's living together is regarded as an employee," and the plaintiff submitted various relevant data in this case, it is difficult to view the plaintiff's living together with the head of Ansan branch office as an employee who provided labor in this case for the purpose of wage." Thus, it is difficult to see that there was any procedural defect in the disposition in this case.

4) Sub-committee

Therefore, since the disposition of this case is lawful, the plaintiff's title of this case, which is premised on the illegality of the disposition of this case, is without merit without having to sell it.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal against the defendants is all dismissed as it is without merit. It is so decided as per Disposition.