Whether the period of workplace skill development training for the prospective employment is included in the “employment period”, which is a requirement for payment of new employment promotion incentives under the Employment Insurance Act (affirmative)

With regard to the calculation of the "employment period", which is the requirement for payment of new employment promotion subsidy under the Employment Insurance Act and the Employment Insurance Act, the period of workplace skill development training commissioned by an employer before entering into the employment contract with the company concerned shall be deemed as the "employment period".

Article 18 (see current Article 23) of the former Employment Insurance Act (amended by Act No. 8429, May 11, 2007); Article 22-2 (1) (see current Article 26 (1)) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2030, Oct. 17, 2007) [Attachment 1]

C&T Information and Communications Co., Ltd. (Law Firm Dumar, Attorney Kim Tae-il, Counsel for defendant-appellant)

The Head of the Seoul Regional Labor Administration's Republic of Korea

April 25, 2008

1. On November 6, 2007, the Defendant’s disposition of site salary for new employment promotion subsidy rendered to the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The text shall be as shown in the text.

1. Details of the disposition;

A. On January 23, 2007, the Plaintiff Company, a venture business company of a small and medium enterprise, filed an application for new employment (the date of employment, Nonparty 6, December 1, 2006; December 7, 2006; December 5, 2006; hereinafter the same shall apply) with the Defendant on the ground that the Defendant was aged 29 years of age and over three months of unemployment; the Defendant applied for employment promotion under Article 18 of the former Employment Insurance Act (wholly amended by Act No. 8429, May 11, 2007; hereinafter the same shall apply); Article 201-2 of the former Enforcement Decree of the Employment Insurance Act (wholly amended by Presidential Decree No. 23030, Oct. 17, 2007; hereinafter the same shall apply); and Article 201-215 of the former Enforcement Decree of the Employment Insurance Act (wholly amended by Presidential Decree No. 20301, Dec. 1, 2007);

B. On August 18, 2006, before the employee of the instant company was newly employed, the Defendant completed the vocational skills development training course, which was conducted by the Plaintiff’s company from September 1, 2006 to November 30, 206 (hereinafter “Korea-do Education Center”), which was entrusted by the Plaintiff, for a period of three months. Of the instant employees, Nonparty 6 and Nonparty 8 applied for job-seeking to the Employment Security Office prior to the instant job-seeking training, but the rest of the instant employees (hereinafter “non-party 1 and non-party 5”) did not meet the new job-seeking training period on September 5, 2005 (excluding the non-party 1, 2, 3, 45, and the non-party 1) and the new job-seeking training period on September 7, 2005 (hereinafter “non-party 1”).

[Reasons for Recognition] Facts without dispute, Gap 1 to 3 evidence, Eul 1 and 2 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff company's assertion

The non-party 1 and the non-party 5 merely received training as the instant prospective employment worker without concluding a labor contract, and therefore, it should be deemed that the instant prospective employment worker was unemployed while undergoing the instant prospective employment training. However, the instant disposition on the ground that the Defendant cannot be deemed a vocational period, as well as the violation of the legal provisions, and is an illegal disposition that deviates from and abused discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) The Plaintiff Company: (a) selected 10 prospective employees through the Han Gan Education Center, who are commissioned by the Company and are in charge of job training from the recruitment of prospective employees to the job training; (b) had them complete the instant prospective employment training necessary to perform the Plaintiff Company’s duties for three months; (c) decided to finally new employment of the instant prospective employees; and (d) concluded each employment contract on the instant prospective employees, wage amount, work hours, etc.

(2) The method of selecting the prospective employment and job training entrusted by the Plaintiff to the Han Gan Education Center is a system in which the Plaintiff would finally evaluate and determine whether to employ the persons subject to education, if the Plaintiff would have recommended the relevant Plaintiff company to undergo a secondary interview, by conducting a public announcement of recruitment of the prospective employment, receipt of documents, document screening, aptitude test, and the first interview.

(3) Workplace skill development training, such as the instant training for the instant prospective employment, conducted by a company for prospective employment, has advantages from employing only verified human resources as a result of the training for prospective employment by using the government support system such as reimbursement of education and training expenses, and by deciding to employ only those who passed the training course without defects. In fact, where a person subject to education for prospective employment, among those subject to education commissioned by a company at the Korea-do Education Center, is either the person subject to education for prospective employment, or the person subject to education for prospective employment, is refused to be employed by a company due to the occurrence of the occurrence of the employment of another company after the completion of education, or the person subject to education for the prospective employment, is not a person subject

(4) During the instant training period, the Plaintiff Company paid KRW 1,00,000 per month for training allowances and food expenses (the actual amount that remains after deducting income tax and resident tax) to the prospective employment candidates who received education at the Korea Youth Education Center (the actual amount that remains after deducting income tax and resident tax). Of the above amount, the amount includes KRW 20,000 and KRW 60,000 for training allowances provided by the Defendant. In addition, the Plaintiff Company received subsidies from the Defendant as expenses for vocational skills development training for the instant prospective employment candidates pursuant to Article 22 of the former Employment Insurance Act and Article 27(1)3 of the former Enforcement Decree of the Employment Insurance Act.

(5) When entering into an employment contract with the instant employees, the Plaintiff Company agreed to pay KRW 1,538,460 as monthly salary to Nonparty 1, 4, 2, 3, and 7, and KRW 1,461,530 as monthly salary to Nonparty 6, 8, and 5.

(6) The Defendant, while rendering the instant disposition with Nonparty 1 and Nonparty 6 and 8 who completed the instant recruitment recruitment training with Nonparty 5, deemed the instant recruitment recruitment training period as a vocational period on the ground that they applied for a job prior to the recruitment recruitment training, and decided to pay a new employment promotion subsidy on the application for a new employment promotion subsidy applied by the Korea Spatial Data Communications Co., Ltd. for the payment of the new employment promotion subsidy, as in the instant case, on the ground that the new employment promotion subsidy applied for by the Korea Spatial Data Communications Co., Ltd., even though the person subject to new employment applied for a job after the commencement of the recruitment training at the Korea Spatial Data Education Center, the training allowance received by the said company

(7) On August 13, 2007, the Minister of Labor responded to the inquiry about the eligibility of new employment promotion subsidy to the effect that “If a youth subject to the relevant subsidy participated in the training for business owners in calculating the unemployment period, which serves as the requirement for payment, and if a labor contract is not concluded during the training period, the training period shall be included in the unemployment period, and in this case, it may be subject to new employment promotion subsidy unless other grounds for disqualification exist.”

[Reasons for Recognition] Evidence A 2, Evidence A 4-1 to 8, Evidence A 5 to 9, evidence B 3, and evidence B 6, the purport of the whole pleadings

(d) Markets:

(1) Whether the requirements for receiving new employment promotion grants are satisfied

According to Article 18 of the former Employment Insurance Act, Article 22-2(1) and [Attachment 1] of the former Enforcement Decree of the Employment Insurance Act, a new employment promotion subsidy is paid to an employer who takes measures for employment security in order to promote employment of those who are difficult to find a job under the ordinary conditions of the labor market. According to the “employment period for each person eligible for a new employment promotion subsidy”, a business owner shall employ a person under 29 years of age who is unemployed in excess of the period of three months counting from the date of applying for job-seeking to an employment security office or any other institution prescribed by the Ordinance of the Ministry of Labor, as the insured, and shall pay a person under 29 years of age who is unemployed in excess of the period of three months counting from the date of applying for job-seeking to the employment promotion office or any other institution prescribed by the Ordinance of the Ministry of Labor. The issue in the instant case

(2) Whether Nonparty 1 and 5 were in a state of unemployment

According to Article 2 subparagraph 3 of the former Employment Insurance Act, the term "employment" means a state in which a worker who is an insured worker is in a state in which he/she is unable to work despite his/her intention and ability to work. On the contrary, "employment" means a state in which he/she is ordinarily engaged in work or self-employed by labor contract, contract, delegation, etc., regardless

Based on such concept, examining whether Nonparty 1 and five other persons were unemployedly employed during the instant training period, the following facts revealed. ① Nonparty 1 and five other persons received the instant training as the status of prospective unemployed workers under the condition that no labor contract was concluded between the Plaintiff and the Plaintiff company. In light of Article 27(1)2 of the former Enforcement Decree of the Employment Insurance Act, an employer who is eligible for workplace skill development training is currently not employed, but has no agreement with the employer regarding the pertinent training period, and the employer has an intention to be employed in the pertinent business or related business after completion of the training period, and the employer of the pertinent business has no choice but to be deemed to have completed the training course on the premise that it would constitute an agreement on the working conditions, such as salary, etc. for the pertinent training period, and thus, the Plaintiff Company may refuse to receive the new training for the instant training period, and it can be deemed that the Plaintiff Company was obligated to finally receive training allowances for the pertinent period of employment promotion from the Plaintiff Company.

Therefore, the defendant's disposition of this case on the premise that the non-party 1 and the non-party 5 did not remain unemployed during the training period of the prospective employment-to-be worker in this case is unlawful, and the plaintiff company's assertion pointing this

3. Conclusion

Therefore, the plaintiff company's claim seeking the revocation of the disposition of this case is justified and it is so decided as per Disposition with the assent of all participating Justices.

Judges Kim Jong-chul (Presiding Justice)