(영문) 울산지방법원 2018.1.25.선고 2017구합620 판결

A. On August 1, 2015, the Plaintiff-type B, who was employed and worked for C corporation, received a notice of the attachment of benefits on the grounds of unpaid automobile tax, etc. from the office of the Nam-gu Busan Metropolitan City, Ulsan Metropolitan City on November 13, 2015, following consultation with the above company’s representative, planned the Plaintiff to retire from the company in form for a certain period of time, and instead to register the Plaintiff as an employee of the said company.

B. Accordingly, during the period from January 1, 2016 to July 9, 2016, an employment insurance policy was purchased under the name of the Plaintiff, but it was continuously employed by the said company and continuously worked for the said company.According to the restoration to B again, the Plaintiff’s name was created as of July 9, 2016, and the Plaintiff applied for recognition of eligibility for job-seeking benefits benefits in the Plaintiff’s name on August 3, 2016, and was recognized as eligible for benefits for 43,416, and the fixed payment days for 150 days. (d) B received job-seeking benefits equivalent to KRW 6,512,370 in total from August 17, 2016 to January 6, 2017 under the Plaintiff’s name.

E. On May 15, 2017, the Defendant rendered a disposition ordering the Plaintiff to return KRW 13,024,740 (hereinafter “instant disposition”) by adding the total of KRW 6,512,370 to the amount additionally collected at KRW 6,512,370, based on the Plaintiff’s determination that the said job-seeking benefits were illegally received.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 2, Eul evidence 2, 3, and 5, the purport of the whole pleadings

2. The plaintiff's assertion that the disposition of this case is legitimate

The job-seeking benefits of this case were led by B independently from its application to its receipt, and the Plaintiff did not have any involvement therein. Accordingly, the instant disposition was unlawful on the erroneous premise that the Plaintiff is responsible for the illegal receipt of benefits.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 62 (1) of the Employment Insurance 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 job-seeking benefits, and in addition, an amount equivalent to or less than the amount of job-seeking benefits received by the relevant fraudulent or other improper means in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor." Here, "false or other improper means" refers to any unlawful act committed by a person who is not eligible for benefits in general in order to conceal the eligibility for benefits, or to conceal the facts of employment or income (see, e.g., Supreme Court Decision 201Du2270, Sept. 5,

In this context, the financial resources required for employment insurance consisting of money collectible under the Employment Insurance Act, reserve funds and other income generated from the operation of the Fund (Article 78(2) of the Employment Insurance Act), and the employment insurance fund created by the National Treasury, etc. provides support for employment security and vocational skills development, and thus, the refund and additional collection of the amount subsidized due to unlawful means differs from tax collection, return of retirement pension in the nature of subsequent wage, etc. In addition, when applying for job-seeking benefits under the relevant provisions of the Employment Insurance Act, it is difficult to view that the competent administrative agency has a substantial right to examine whether the employee is in the name of the employee is in the same nature as the actual employee. In addition, if it is a nominal employee, even if it is not a direct cause for such unlawful act, it is reasonable to assume liability as the nominal employee even if it is not a nominal employee. If it is not deemed as such, it is possible for the employee to use it as a means to avoid liability by asserting that he/she is only a nominal employee, and if so, it may affect the legal stability of the employee’s name.

In addition, sanctions against violations of administrative laws are sanctions against the objective fact of violation of administrative laws in order to achieve administrative purposes, and thus, they may be imposed even if there is no intention or negligence on the part of the violator, unless there are special circumstances such as there is a justifiable reason not to cause any negligence on the part of the violator (see Supreme Court Decision 2009Du4272, supra, etc.).

2) Determination

Each of the above evidence, Gap evidence Nos. 3 and Eul evidence Nos. 3, which can be acknowledged by comprehensively considering the purport of the entire arguments, i.e., ① the job-seeking benefits in this case was the most likely to be retired after the plaintiff joined the above company even though the plaintiff was not a member of Eul, ② the defendant's Ulsan Employment Center requested the plaintiff to visit Ulsan to apply for recognition of eligibility for unemployment benefits, and the plaintiff visited Ulsan Employment Center to the effect that "the plaintiff was informed of the method of applying for unemployment benefits and how to prepare the application," and the plaintiff stated that "the plaintiff did not directly file an application for unemployment benefits with B," and "job-seeking benefits" cannot be viewed as being justified by providing the plaintiff's name or loan No. 2 in light of the above statement No. 2, "job-seeking benefits", and "job-seeking benefits" cannot be viewed as being justified by providing the plaintiff's name or loan No. 2, and then, "job-seeking benefits" cannot be viewed as being justified by providing the plaintiff's name or loan No. 2.

Therefore, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.