(영문) 대구고등법원 2020.11.6. 선고 2020누2531 판결

The judgment of the first instance shall be revoked. On October 31, 2018, the order issued by the Defendant to return unemployment benefits and the disposition taken to additionally collect unemployment benefits to the Plaintiff shall be revoked.

Reasons

1. Quotation of judgment of the first instance;

The reasoning of this Court’s explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition of the following judgments, and therefore, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination on addition

A. Part concerning B of the grounds for the instant disposition

(1) According to the overall purport of Gap evidence 3, Eul evidence 12, 14, 15, and 17, Eul worked at the construction site in Youngcheon City from September 5, 2016 to October 30, 2016, Eul participated in the education for assistants from September 19, 2016 to October 25, 2016, and was hospitalized at the hospital due to traffic accidents from November 3, 2016 to November 7, 2016, and during the above period, the fact that Eul worked at the records on the provision of activity support allowances in Eul is recognized.

(2) However, according to the above evidence, according to the following circumstances acknowledged by the purport of the testimony and the whole pleadings of the witness D at the trial, the above facts alone are insufficient to deem that the Plaintiff was working as an assistant of E instead of lending the name of B, and there is no other evidence to acknowledge this differently. Thus, this part of the disposition is not recognized.

(1) E is a person who worked as a survey for his activities, and when it is inevitable for B to receive activity assistance education or hospitalization due to traffic accidents, E makes a statement that B was able to do so on behalf of the Plaintiff, but in Pyeongtaek, B was able to look back to E.

D also stated to the effect that the Plaintiff was acting on behalf of the Plaintiff, such as taking a bath to his F and G, while attending the court of the first instance, it was true that the Plaintiff worked on behalf of the Plaintiff when the Plaintiff did not do so, but the Plaintiff alone stated that B performed the assistant duty.

③ There is little absence from E’s work, and, at the same time, B stated that he worked at E’s office from 6:00 to 7:00 a.m. and worked at 10:00 a.m. to 11 p.m., or worked at 20:0 p.m. to 19:0 p.m..., C’s representative stated that he worked at 2:0 p.m. on September 2016 and retired at 3:4 p.m. after working at 11:0 p.m., and most of the hours of the service provided on the record of the provision of activity support allowances for the above employment period are written at 06:00 p.m. to 00 p.m.) or night (17:0 to 23:00) except for working hours in the above C, and that he/she does not overlap with C’s work hours at E’s office.

B worked as activity assistants for E from September 1, 2016 to December 28, 2015. It is insufficient to view that the Plaintiff temporarily worked as activity assistants under Article 92 of the Enforcement Rule of the Employment Insurance Act on the sole basis of the fact that the Plaintiff, for 12 days in total, including five days (from November 3, 2016 to November 7, 2016) hospitalized in the hospital B, or seven days (from September 19, 2016 to September 25, 2016) attending the education for activity assistants, was engaged in activity assistants for B.

B. Part concerning I of the grounds for the instant disposition

(1) The Plaintiff, based on the notice of the reason for non-prosecution (Evidence A No. 4), issued a non-prosecution disposition on suspicion of violation of the Employment Insurance Act that the Plaintiff filed a false application for unemployment benefits. According to the above non-prosecution disposition, the Plaintiff stated that D had made a statement to the effect that D had attempted to engage in the activity as an activity assistant for F and G disabled persons, but most of the Plaintiff had tried to engage in the activity. Accordingly, the instant disposition based on different factual relations should be revoked on the ground that there was an error of misunderstanding of facts.

(2) Since a criminal judgment that became final and conclusive on the same factual basis is a flexible evidence, it is recognized that it is difficult to adopt a factual judgment in a criminal trial in light of other evidence submitted in the civil trial.

Although the Supreme Court has established that the facts against this cannot be recognized, barring any special circumstance, there is no same value as the final and conclusive criminal judgment against the prosecutor's non-suspect decision, it cannot be deemed that the court below's finding of facts contrary to the grounds for the prosecutor's non-suspect decision is against the rules of evidence or contrary to the Supreme Court's precedents (see Supreme Court Decision 95Da21884, Dec. 26, 1995).

(3) According to the health team and notice of reasons for non-prosecution (Evidence A No. 4) regarding the instant case, the fact that “the Plaintiff, while working as an assistant for the disabled, from June 20, 2016 to December 16, 2016, applied for unemployment benefits in a false manner and received a total of KRW 7,814,840 on seven occasions,” as to the suspected violation of the Employment Insurance Act, was found to have been disposed of on March 21, 2019 at the Daegu District Public Prosecutor’s Branch Office.

However, in light of the above legal principles, in light of the following circumstances acknowledged by Gap evidence 1, Eul evidence 16, Eul evidence 16, 28, and 29 as well as witness D's statements and the purport of the whole pleadings, the plaintiff can be acknowledged that the plaintiff worked at D's home with D and F's main part of the work of assisting disabled persons to work at D's home, and the above circumstances alleged by the plaintiff are insufficient to back-up period. The plaintiff's act constitutes "where it is deemed difficult to find regular employment in other businesses by providing labor for more than 3 months" under Article 92 subparagraph 2-5 of the Enforcement Rule of the Employment Insurance Act, "where the plaintiff continues to work for more than 3 months" under Article 92-2 of the Enforcement Rule of the Employment Insurance Act, it constitutes "where it is deemed difficult to provide labor by engaging in the commercial, agricultural, etc., or other people's work, or by participating in other people's work". Thus, the plaintiff can be viewed as "employment" under Article

① consistently, from Daegu Regional Employment and Labor Agency’s port to the statement at the court of first instance, D’s key was more than 180cc and its body weight was more than 80cc and D’s ability to cope with it as a female, and D’s desire to open or take a bath for it is impossible to do so. Each day, the Plaintiff was taking the bath of G or F, and the Plaintiff was both at the time of going out of the country, and both at the time of going out of the country and going out of the country, and both at the time of going out of the country, the Plaintiff was able to take care of G and F. D’s desire to clean up at home and go out of the country. D’s statement to the effect that “I did not day a day after the day of congested.”

② At the Daegu Regional Employment and Labor Office’s interrogation protocol (No. 29 No. 29), the Plaintiff also worked mainly on Saturdays and Sundays. On Saturdays, the Plaintiff was going out of the office of G by 9:00 a.m. around 11 p.m. to take a bath and o’clock at 1:0 p.m., and the Plaintiff was the Plaintiff. On Sundays, the Plaintiff was working first at around 9:0 p.m. at 1:0 p.m..., the Plaintiff was going to work. The Plaintiff was going to take a bath of G, and D was going to come to work for household affairs, such as snow and cleaning. At a night, the Plaintiff was going to work almost every day at F’s house, and the Plaintiff was able to take a bath and going out of the office, and the Plaintiff was able to take a bath and going out of the office, and the Plaintiff made a statement to the effect that the Plaintiff was able to take off the f on the d’s statement.

C. Even if a single disciplinary measure is not recognized when a part of the sanctions were imposed on several grounds, where the legitimacy of the remaining grounds for the disciplinary measure is recognized as unlawful, such a measure shall not be revoked on the ground that it was unlawful (see, e.g., Supreme Court Decision 2015Du2826, Jun. 15, 2017).

The benefit period of the Plaintiff’s job-seeking benefits is from June 20, 2016 to December 16, 2016, and as seen earlier, the Plaintiff provided F and G with labor as assistants together with D, and the Plaintiff was at least two to three times a week from June 2016 to December 12 of the same year. Thus, even if it is not recognized that the Plaintiff provided labor to E among the instant disposition causes, the remaining fact alone constitutes a case subject to return of unemployment benefits and collection pursuant to Article 62(1) of the Employment Insurance Act. Thus, the instant disposition is justifiable.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is justified with this conclusion. Thus, the plaintiff's appeal is dismissed. It is so decided as per Disposition.