(영문) 서울행정법원 2019.9.24.선고 2018구단74917 판결

On May 2, 2018, the Defendant revoked the restriction on the payment of unemployment benefits, the order for return, and the disposition of additional collection against the Plaintiff.

Reasons

1. Details of the disposition;

A. A. Around March 10, 2015, the Plaintiff retired from office in the Dispute Resolution Co., Ltd., and on April 21, 2015, upon applying for recognition of eligibility for employment insurance benefits to the Defendant, the Plaintiff recognized eligibility of KRW 210 days for the fixed payment days, daily amount of job-seeking benefits 43,000, and received KRW 3,354,000 for job-seeking benefits, as follows, from April 28, 2015 to July 14, 2015, and received KRW 3,354,00 for job-seeking benefits, and was re-employed to the Jeju Co., Ltd on July 15, 2015, and received KRW 2,838,000,00 as early May 2017.

A person shall be appointed.

B. On June 2, 2015, the second unemployment recognition date, the second unemployment recognition date, the Defendant confirmed that the Plaintiff’s spouse had been paid job-seeking benefits on behalf of the Plaintiff by filing an application for recognition of the Internet unemployment (hereinafter “instant application”) even though the Plaintiff had been staying in a foreign country at the time of June 30, 2015, which was the third unemployment recognition date, and on May 2, 2018, the Defendant issued an order to return KRW 5,547,000 for job-seeking benefits and early re-employment allowances paid upon the instant application and its subsequent application, and issued the instant order to additionally collect KRW 1,204,00 equivalent to the amount of job-seeking benefits arising from the third unemployment recognition.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5, 6, Eul evidence Nos. 5, 6, 9, 12, and 13 (including additional numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff was staying in China while having actually engaged in job-seeking activities, the Plaintiff had his spouse, who was inevitably staying in Korea due to the impossibility of being an authorized certificate through overseas IP on the system, applied for the recognition of unemployment instead of the Plaintiff. Despite such circumstances, the instant disposition that ordered the Plaintiff to return job-seeking benefits and early re-employment allowances paid after the instant application and to additionally collect job-seeking benefits by deeming that the Plaintiff received job-seeking benefits by false or other unlawful means is unlawful.

B. Determination

(1) Article 61(1) of the former Employment Insurance Act (amended by Act No. 16269, Jan. 15, 2019; hereinafter the same) provides that a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date on which he/she received, or attempted to receive, such unemployment benefits. Article 62(1) of the same Act provides that the head of an employment security office may order the person who has received, or attempted to receive, job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits paid to him/her by fraud or other improper means; and in addition, the amount equivalent to the amount of job-seeking benefits paid by the person who has received, or attempted to receive, unemployment benefits may be collected in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor. The term "false or other improper means" refers to any fraudulent act that generally leads to a person ineligible for benefits, excluding eligibility for benefits, employment, or income occurrence,

(2) In light of the above legal principles, in light of the content and purport of the employment insurance-related Acts and subordinate statutes (specific contents as stated in the separate sheet), it is reasonable to view that the application of this case filed by the Plaintiff through his spouse constitutes "false or any other unlawful means stipulated in Articles 61 and 62 of the former Employment Insurance Act" as deceiving the employment security office by writing the appearance of the Plaintiff, who is a beneficiary, directly filing an application for unemployment recognition. Therefore, the instant disposition is lawful and the Plaintiff’s assertion to this different purport is without merit.

① According to Articles 40(1)2 and 40(1)4 and 44(2) of the former Employment Insurance Act, in order to receive unemployment benefits (job-seeking benefits), substantive requirements such as active efforts to re-employment in an unemployment situation despite having the intention and ability to work, and procedural requirements such as verification of unemployment should be satisfied by reporting that the retired insured was making efforts for re-employment at the date designated by the head of the Employment Security Office (hereinafter referred to as “date of recognition of unemployment”).

(2) In particular, Article 44 (2) of the former Employment Insurance Act provides that an eligible recipient who intends to obtain the recognition of unemployment shall, in principle, apply for job-seeking benefits after attending the unemployment recognition date: Provided, That where an applicant is unable to appear at the unemployment recognition date due to a cause or event prescribed in Article 65 (1) through 5 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2950, Jul. 2, 2019; hereinafter the same shall apply), the applicant shall be required to apply for the change of the unemployment recognition, and where the applicant is unable to appear at the unemployment recognition date due to a disease or injury (Article 44 (3) 1 of the former Employment Insurance Act), the "Interview, etc. with the job offerer through job placement by employment security offices (Article 44 (3) 2 of the former Employment Insurance Act)," Article 44 (3) 3 of the former Enforcement Decree of the Employment Insurance Act (Article 44 (3) 4 of the former Employment Insurance Act), or who directly resides with the Internet or any other reason for unemployment recognition (excluding any person who has been present at the Internet or land.

As such, the purport of recognizing the exception of direct attendance only in cases where attendance at the unemployment recognition date is required in principle in order to obtain unemployment recognition and there is an inevitable reason or where special exception to unemployment recognition is recognized is to prevent unfair job-seeking benefits by the head of an employment security office from resolving economic and social difficulties caused by unemployment by paying a considerable amount of the benefits needed for life when a worker is unemployed, and at the same time by directly checking the contents of job-seeking activities, the intent of efforts to re-employment, and capabilities for job-seeking.

③ Furthermore, Article 89(6) of the former Enforcement Rule of the Employment Insurance Act provides that even if a person recognized by the head of an employment security office as a special person for recognition of unemployment is capable of reporting directly re-employment activities and income generated through the Internet (Article 65 Subparag. 9 of the former Enforcement Decree of the Employment Insurance Act), a person shall faithfully report whether 'direct re-employment activities and income accrued through information and communications networks using an authorized certificate on the date designated

In light of these provisions, even if exceptional cases are acknowledged in the application method for recognition of unemployment, it is reasonable to view that the beneficiary should apply directly for recognition of unemployment as in the case of ‘direct attendance at the Employment Security Office' at least on the date of recognition of unemployment.

④ Even if the Plaintiff was unable to know the above procedure for filing an application for unemployment recognition as to job-seeking benefits, a sanction against a violation of administrative laws is imposed based on the objective fact of violation of administrative laws in order to achieve administrative purposes. Thus, barring special circumstances, such as where a breach of duty is not caused by an intentional act or negligence on the part of the violator (see Supreme Court Decision 2002Du5177, Sept. 2, 2003). Thus, in the instant case, it is difficult to view that the Plaintiff’s assertion in violation of the law alone is insufficient to deem that there is a justifiable reason not attributable to the Plaintiff for having the spouse act on behalf of the Plaintiff without filing an application for unemployment recognition by directly using an authorized certificate for unemployment recognition.

⑤ The amount for which the Defendant ordered the return and additional collection in the instant disposition is calculated in accordance with the standard under Articles 104 and 105 of the former Enforcement Rule of the Employment Insurance Act specifying the content of Articles 61 and 62 of the former Employment Insurance Act. In light of the content and purport of the Plaintiff’s violation and relevant statutes, the legislative purpose of the Employment Insurance Act, which provides necessary benefits in the event of unemployment and facilitates the stability of workers’ livelihood and job-seeking activities, even if considering the circumstances of the Plaintiff’s assertion, it cannot be deemed that the instant disposition under each of the above Enforcement Rule is excessively harsh to the Plaintiff compared to the public interest to be achieved thereby, and does not constitute deviation

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.