2012Guhap12938 Revocation of suspension of duty

A

Minister of Employment and Labor

June 5, 2012

June 28, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On April 12, 2012, the defendant revoked the suspension of one-month disposition against the plaintiff.

1. Details of the disposition;

A. The Plaintiff is a representative certified labor affairs consultant of the Gangnam-gu Seoul Labor Law Firm B (hereinafter referred to as the "Labor Law Firm B") located in Gangnam-gu.

B. From July 25, 2009, the defendant promoted illegal receipt of D's unemployment benefits (the total amount of job-seeking benefits of KRW 1,880,00 and early re-employment allowances of KRW 860,00,00 during the period subject to unemployment recognition from July 16, 2009 to August 31, 200) (hereinafter referred to as "the act of this case") by knowing that the plaintiff violated the duty to maintain dignity and maintain good faith under Article 12 (1) of the former Certified Public Labor Attorney Disciplinary Committee (amended by Act No. 10321, May 25, 2010; hereinafter referred to as the "Certified Public Labor Attorney Act") by applying Article 20 (1) 4 and 3 of the former Certified Public Labor Attorney Act (the "Certified Public Labor Attorney Act").

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

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Absence of grounds for disciplinary action

D From July 25, 2009 to assist the plaintiff who suffered a traffic accident along with his personal business affairs in the non-party labor law firm. Around September 1, 2009, the plaintiff entered into a labor contract with the non-party labor law firm and started work. The plaintiff was never aware at the time when D receives the unemployment benefits. The plaintiff was aware at the time when D was receiving the unemployment benefits, and the plaintiff was aware of put to put on order before September 1, 2009. The amount paid to D before September 1, 2009 is merely an honorarium and paid to D in cash or in another's account is not by the intention to encourage D's illegal unemployment benefits, but rather, it is merely a bank account informing of D without any particular mind. Therefore, the disposition of this case that the plaintiff caused D's illegal receipt of unemployment benefits is unlawful since it did not exist the grounds for the disciplinary action of this case.

2) The deviation and abuse of disciplinary discretion

Even if the plaintiff knew that he received unemployment benefits from D, it was found that there was no conspiracy or aiding and abetting the illegal receipt of unemployment benefits as a result of prosecutorial investigation that the plaintiff was suspected of violating the Employment Insurance Act. The plaintiff was not actively aware of D's application for unemployment benefits and its supply and demand, and that D's application for unemployment benefits and its supply and demand did not affect D's application for unemployment benefits and its supply and demand, and that D's illegal receipt and payment of unemployment benefits was subject to the suspension of one-month disposition like D's suspension of duties. The plaintiff did not receive benefits from the illegal receipt of unemployment benefits from D, and D returned the amount equivalent to twice the above illegal receipt and payment. In light of the above facts, the instant disposition was erroneous in the misapprehension of disciplinary discretion because the plaintiff was excessively harsh and inconsistent with equity.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) Around November 2007, D obtained qualification as a certified public labor attorney and served in the E labor law firm, and reported on unemployment on June 30, 2009 to the Seoul Mak Total Employment Support Center on July 9, 2009, upon filing an application for unemployment recognition on July 23, 2009, filed an application for job-seeking benefits of 320,000 won, and filed an application for unemployment recognition on August 13, 2009, and received early re-employment benefits of 180,000 won, including job-seeking benefits of 720,000 won (from July 16, 2009 to August 31, 2009), and received early re-employment allowances of 86,000 won, upon filing an application for unemployment recognition on September 4, 2009.

2) Meanwhile, D worked in a non-party labor law firm from July 2009, 25 to 2009, 8, and 31 during a period subject to unemployment recognition. Around September 1, 2009, it concluded a labor contract with a non-party labor law firm in a fixed manner. The wages were paid at base pay 2,300,000 won and performance rate in accordance with the employment conditions of certified labor attorneys in the second year.

3) According to the direction of the plaintiff, the non-party labor law firm paid to D totaling KRW 3,587,758,00 for the work period from July 25, 2009 to August 31, 2009. Of these, KRW 1,363,158 was paid to D in cash. The remaining KRW 2,224,60 was transferred to a deposit account in the name of the private village F designated by D, while the above KRW 3,587,758 was accounted for as the service cost of the non-party labor law firm, and the above KRW 2,224,60 was reported as the F's business income.

4) On the other hand, the Seoul Regional Employment and Labor Agency of Seoul Central Employment and Labor Agency (Seoul Regional Employment and Labor Agency) made a false report on employment insurance, in collusion with D on July 25, 2009, the Plaintiff, a business owner, even though D was employed in the non-party labor law firm.

D concealed employment facts by unlawful means and received job-seeking benefits and early job-seeking benefits by filing an application for unemployment recognition, etc., and filed a complaint with the Seoul Central District Prosecutors' Office (hereinafter referred to as "related accusation case") under the charge of violating the Employment Insurance Act. The prosecutor of the above prosecutor's office, on June 16, 201, does not separately stipulate the duty of the employer to report to the head of the Employment Security Office by the employer who employs the worker who received unemployment benefits to the head of the Employment Security Office, and the penal provision on the violation of the Employment Security Act. Thus, it cannot be viewed as receiving unemployment benefits by fraudulent or other illegal means in collusion with D, who is an employer, with the Plaintiff's non-reporting act, and further, it is difficult to recognize that the Plaintiff participated in the Plaintiff's illegal receipt of unemployment benefits at the time of applying for D's unemployment benefits, and therefore, it is not recognized that the Plaintiff violated the Employment Insurance Act.

[Ground of recognition] Facts without dispute, Gap evidence 5-1, 2, Gap evidence 6, 7, the purport of the whole pleadings

D. Determination

1) Judgment on the non-existence of the grounds for disciplinary action

In full view of the following facts and circumstances that are acknowledged as above and Eul evidence No. 1, the purport of the entire pleadings, and the Plaintiff’s act of impliedly or encouraging the supply of and demand for unemployment benefits D by knowing the supply of and demand for unemployment benefits to the non-party D who worked in the non-party labor law firm from July 25, 2009, by paying wages to cash, checks, or other person’s account. It is reasonable to deem that the Plaintiff’s act is a certified labor affairs consultant who is a professional qualified in the labor law firm and violates the duty to maintain dignity, etc. provided for in Article 12(1) of the Certified Labor Affairs Consultant Act. Thus, this part of the Plaintiff’s assertion

① On Nov. 4, 2010, D stated that “At the time of the investigation into the Seoul Employment and Labor Center of the Seoul Regional Employment and Labor Service, D was working and was paid less than the wages paid by the E labor law firm at the time,” and that part of the Plaintiff did not receive unemployment benefits and was a regular recruitment. Before the attendance investigation was conducted on Jan. 201 and Feb. 2010, the Plaintiff was only the Plaintiff, and the Plaintiff proposed that “I would like to support half of the refund for the illegal receipt,” and that “I would like to support half of the refund for the illegal receipt of benefits.” The above statement is difficult to deny the value of evidence on the grounds that there are special circumstances to suspect considerable specific and objective truth.

② In addition, the Plaintiff paid D wages corresponding to D wages during the period from July 25, 2009 to August 31, 2009 by depositing them into cash or a bank account in the name of a third party as the service cost. It is very exceptional to transfer wages to an account in the name of a third party other than the employee or to pay them in cash as above. In light of the contents of the statement at the time of investigation as of November 4, 2010, it seems to be necessary to conceal the employment of D when receiving unemployment benefits at the time of investigation.

③ Meanwhile, in the relevant accusation case, the reason why the prosecution made a non-prosecution disposition against the Plaintiff on the charge of violating the Employment Insurance Act is that it is difficult to recognize the establishment of the crime of violation of the Employment Insurance Act against the Plaintiff. Therefore, it cannot be deemed that the Plaintiff was unaware of the fact that the prosecutor was receiving D unemployment benefits at the time of the prosecution’s non-prosecution disposition.

4. The plaintiff who is a certified labor affairs consultant who is a professional certified labor affairs consultant in the labor-related Acts and subordinate statutes, has a heavy responsibility according to the professional ethics that his/her employees should guide to comply with the labor-related Acts and

2) Determination on the assertion of deviation and abuse of disciplinary discretion

Recognition through the above facts and the purport of the Employment Insurance Act's legislative intent and the whole argument

In light of the following circumstances, i.e., (i) unemployment benefits means the employment insurance fund created by the employment insurance premium that is paid to a worker for the stabilization of workers’ livelihood and job seeking by providing a salary necessary for his/her unemployment and promoting job-seeking activities, and thus, it is necessary for the public interest to maintain the soundness of the Fund by preventing unjust supply and demand. (ii) The Plaintiff’s act of this case with respect to the main portion and ethical responsibility of the certified labor attorney who is a professional qualified under the labor-related Acts and subordinate statutes, as well as the Plaintiff’s dignity as a practicing labor affairs consultant. (iii) In light of the fact that the unlawfully received and received unemployment benefits is subject to a disciplinary action of five months and ten days of suspension from office, the Plaintiff’s suspension from office for the Plaintiff does not seem to violate equity (the instant disposition). In full view of all favorable circumstances asserted by the Plaintiff, it cannot be deemed that the instant disposition is excessively harsh to the Plaintiff, and thus, the Plaintiff’s allegation to this part is without merit.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

The presiding judge, assistant judge and assistant judge;

Judges Kim Yong-tae

Judges Kim Gin-dong

1) On December 15, 2010, the Defendant was subject to the suspension of qualification for one year with respect to the act of unlawful receipt of unemployment benefits against D, but on December 29, 2011.

The suspension of office was reduced by disciplinary action of 5 months and 10 days.

A person shall be appointed.

A person shall be appointed.