(영문) 울산지방법원 2013.1.9. 선고 2012구합1468 판결

A. On January 1, 1978, the Plaintiff entered and worked in the Dispute Resolution Co., Ltd. for 32 years and retired from office on December 31, 2009, and filed an application for recognition of eligibility for employment insurance benefits following the severance from employment with the Defendant on January 25, 2010, and obtained recognition of eligibility for benefits from the Defendant for benefits of 1) 240 days (50 years or older as of January 1, 2010 to December 20, 2010 (58 years or older as of December 1, 2010) (14 years or older as of December 20, 200), 40 million won for the insured period (14 years or more as of December 20, 200) (50% of the average wage at the place of business before the separation exceeds the maximum amount of 40,000 won) (hereinafter referred to as the “approval of the primary eligibility for benefits”).

B. The Defendant suspended the payment of job-seeking benefits for three months (from January 25, 2010 to April 24, 2010, which is the date of the report) pursuant to Article 59 of the Employment Insurance Act, as the retirement benefits received by the Plaintiff at the time of retirement from B reaches at least KRW 100 million. However, on April 22, 2010, the period of grace expires, the Plaintiff was employed as a worker on the “S-35 in the “S-35 in the first place” site, which is prior to the expiration of the period of grace. Accordingly, the Plaintiff did not receive job-seeking benefits due to the said eligibility.

C. The Plaintiff, who was employed in the S-35th in the “S-35th Work site” as seen above, went back on August 31, 2010, and thereafter, applied for recognition of eligibility to receive employment insurance benefits from the Defendant on September 27, 2010, and obtained recognition of eligibility to receive employment insurance benefits from the Defendant for the benefit of 240 days (50 years old and over (59 years old as of September 1, 201 through May 31, 201) of the fixed benefit payment days from the Defendant (59 years old and over) (10 years old as of May 27, 2014), and KRW 40,00 (50% of the average wage of the previous workplace exceeds the maximum amount of 40,000 won) of the daily benefit (hereinafter referred to as “approval of eligibility to receive secondary benefit”).

D. (1) In addition, the Plaintiff received the unemployment recognition from the Defendant for five occasions more than 85 days from October 4, 2010 to January 3, 201, and received the total amount of KRW 3,400,000 for job-seeking benefits.

A. L. L. L.I.

A person shall be appointed.

2) On January 4, 2011, the Plaintiff re-employed the head office of the Dispute Resolution Co., Ltd. for at least six months.

E. Accordingly, on July 5, 2011, the Plaintiff filed a claim for early re-employment allowance with the Defendant on the facts set forth in the above paragraph (d)(2). On August 16, 2011, the Defendant rendered a disposition of the said allowance site payment (hereinafter the instant disposition) on the ground that the “CB Co., Ltd., a workplace of re-employment, is the same business owner as the “S-35 in the “S-35 in the contract site” in the final separation of employment.

F. On August 23, 2011, the Plaintiff filed a request for review with an employment insurance examiner to revoke the instant disposition, but was dismissed on January 12, 2012. On February 27, 2012, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee, but was dismissed on April 9, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1-5, and the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Table related statutes.

3. The assertion and judgment

A. Summary of the parties' arguments

1) Summary of the Plaintiff’s assertion

A) 240 days of the fixed number of days for which the Plaintiff is entitled to the employment insurance benefits recognized for the Plaintiff, and 40,000 won of the daily amount of job-seeking benefits, for 32 years from January 1, 1978, the Plaintiff is entitled to receive the retirement benefits from B through B, and the Plaintiff worked for 4 months and 9 days at C, a “S-35 in the “S-35 in the job site”, is not affected by the recipient’s eligibility for early re-employment, except for automatic extension of the benefit period for that period (in the case of re-employment on the job site, it is not subject to early re-employment allowance, and it does not affect the existing recipient’s eligibility for early re-employment benefits). Therefore, the “minimum re-employment from employment” in the “business owner who is a person eligible for early re-employment from employment” in Article 84(1)1 (a) of the Enforcement Decree of the Employment Insurance Act shall not be considered as the “business owner who becomes eligible for early re-employment” in C.

B) (1) In accordance with the Defendant’s assertion as seen below, when there is a significant difference between the wage at the first place of business prior to the most long-term employment and the wage at the second place of business prior to the short-term employment, it would result in unfair consequences in the calculation of job-seeking benefits or early re-employment allowances. This is against the law of determining the amount of early re-employment allowances, without considering the purport of the early re-employment allowances that are paid to the unemployed to induce their early re-employment in a stable occupation through minimizing the period of their unemployed employment and their efforts to actively job-seeking.

(2) In addition, the Ministry of Health and Welfare Decision 2A-108-02018 on December 8, 2010 (in the case of re-employment at various levels of schools under the same City/Do Office of Education as fixed-term teachers, whether it is justifiable to recover the early re-employment allowance by the authoritative interpretation of the Ministry of Labor that no early re-employment allowance cannot be paid, regardless of whether it is active job-seeking) and Supreme Court Decision 2009Du19892 Decided December 8, 201 (see Article 84(1)1 of the former Enforcement Decree of the Employment Insurance Act) (affirmative in principle), which is contrary to the purport of Article 84(1)1 of the former Enforcement Decree of the Employment Insurance Act.

2) Summary of the defendant's assertion

A) According to the Employment Insurance Act, job-seeking benefits should be paid on the basis of the newly recognized eligibility for benefits in cases where a person who has obtained the recognition of eligibility for benefits has obtained the new eligibility for benefits (Article 43(4)). Since the Plaintiff’s recognition of the secondary eligibility for benefits does not extend only the benefit period of the first eligibility for benefits, but also the case where the recognition of eligibility for benefits has been obtained, the Plaintiff’s payment of job-seeking benefits or early re-employment allowances, which is a modified form of the newly recognized eligibility for benefits, should be paid based on the newly recognized eligibility for benefits, and accordingly, the business owner who has retired from employment at the “S-35 in the first place of business” and re-employment to C head office after having retired from employment at the “S-35 in the first place of business” constitutes grounds for early re-employment benefits payment. Therefore, the Plaintiff’s re-employment to the head office constitutes grounds for exclusion from the payment of early re-employment allowances.

B) The remainder of the Plaintiff’s assertion alone cannot be viewed differently.

B. Determination

1) The characteristic of the right to receive various kinds of benefits under the Employment Insurance Act is inseparably mixed with that of the right to receive social security benefits and the right to property rights. Although some property rights exist, they cannot be affected by strong social security law, and if two elements of the right to receive social security benefits and the right to property are mixed inseparably, legislative officers may recognize them as one whole and put more emphasis on one of the elements. Thus, in establishing the specific contents of the right to receive benefits, legislators may independently regulate them to achieve the legislative purpose, and the decision-making and decision-making of necessary policies are first placed at the discretion of legislators (see Constitutional Court Decision 97Hun-Ma333, Apr. 29, 199).

2) On the premise of the foregoing legal doctrine, we examine the parties’ assertion.

According to Article 43 of the Employment Insurance Act, a person who intends to obtain job-seeking benefits shall obtain recognition from the head of an employment security office of the fact that he/she satisfies the eligibility requirements for job-seeking benefits under Article 40 (1) 1 through 3 and 6 (hereinafter referred to as "eligible for benefits"). Upon receipt of an application for recognition of eligibility for benefits under paragraph (1), the head of an employment security office shall determine whether to grant such eligibility, as prescribed by Presidential Decree, and shall notify the applicant of the result, as prescribed by Presidential Decree (paragraph (2)). (2) If an applicant under paragraph (2) meets all the requirements that the applicant would not have received job-seeking benefits in connection with the most recent severance from employment before the most recent severance from employment, the determination on whether to grant eligibility for benefits shall be made on the basis of the most recent severance from employment: Provided, That if a daily worker whose insured unit period is less than one month fails to meet the eligibility for benefits at the time of the most recent severance from employment, the eligibility for benefits shall be determined on the basis of a non-daily worker (paragraph (3).).

Meanwhile, under Article 48 (1) of the Employment Insurance Act, job-seeking benefits shall be paid within 12 months from the date following the date of severance from employment related to eligibility for the job-seeking benefits, except as otherwise provided for in this Act, within the limit of the fixed benefit payment days under Article 50 (1). According to Article 49 of the same Act, job-seeking benefits shall be paid within the limit of 12 months from the date following the date of such severance from employment related to eligibility for the job-seeking benefits, and under Article 44 of the same Act, "the seven-day waiting period beginning with the date of the date of the unemployment under Article 42, shall be considered as the waiting period, and job-seeking benefits shall not be paid for the seven-day waiting period," and under Article 50 (1) of the same Act, "the fixed benefit payment days" shall begin with the date after the waiting period expires and shall be calculated as the number of days specified in the attached Table according to the employment period and Article 48 (2) and Article 50 (2) of the Enforcement Decree of the Employment Insurance Act, and shall be paid for the extended period of employment benefits.

In this context, when applying the above provisions, in particular Articles 43(1), 48(1), 49, 50(1), 48(2), and 50(2) of the Employment Insurance Act, eligibility for benefits arising from recognition of the primary eligibility for benefits that the Plaintiff received, if the Plaintiff did not obtain recognition of the secondary eligibility for benefits, the Plaintiff was employed as a temporary worker on the “S-35st Work” site, which was executed by the Bank of Korea in April 22, 2010, and retired on August 31, 2010, the period is not extended for that period, and the first benefit period (from January 1, 2010 to December 20, 2010) expires on December 20, 2010.

Then, in applying Article 43 of the Employment Insurance Act to the above facts, the recognition of the secondary eligibility received by the plaintiff is recognized as the primary eligibility according to the retirement from B. However, without receiving job-seeking benefits from the eligibility within the benefit period, the status of the secondary eligibility is set up in the main sentence of Article 43(2) of the Employment Insurance Act by retiring from work at the “S-35st Construction Project” site without receiving job-seeking benefits. Meanwhile, the employment period at the “S-35st Construction Project site” in the “S-35st Construction Project site” in Article 43(2) of the Employment Insurance Act is not set up in the proviso of the same paragraph 4-9 months (3-27 months in the insurance period. Accordingly, the period of employment at the “S-35st Construction Project site” in Article 43(2) of the Employment Insurance Act was received from the worker who is not a daily worker, and it is not received based on the last “B-type construction project, which is the worker who is not a daily worker.

In this case, job-seeking benefits should be paid to the plaintiff on the basis of the secondary eligibility for benefits that the plaintiff obtained the recognition of the secondary eligibility for benefits after obtaining the approval of the primary eligibility for benefits as provided by Article 43 (4) of the Employment Insurance Act because the person who obtained the approval of the secondary eligibility for benefits falls under the case where the plaintiff newly obtained the recognition of the eligibility for benefits within the benefit period, and the secondary eligibility for benefits should be recognized as the basis of the business of the Dispute Resolution Bank, which

Meanwhile, Article 64(1) of the Employment Insurance Act provides that, in order to minimize the period of unemployment of unemployed workers and encourage prompt re-employment in a stable occupation, part of unpaid job-seeking benefits shall be paid as early re-employment allowances in cases where an eligible recipient re-employments in a stable occupation and meet the standards prescribed by the Presidential Decree. Accordingly, Article 84(1)1 of the Enforcement Decree of the same Act provides that the above eligible recipient shall be included in the payment standards for early re-employment allowances in cases where the eligible recipient continues to employ for 6 months or longer at the same time as the eligible recipient’s employer. However, in order to prevent abuse of the above system, the proviso to Article 64(1) provides that the above provision shall be excluded from the above payment standards in cases where

According to the above, early re-employment allowance under Article 64 (1) of the Employment Insurance Act shall be changed to job-seeking benefits, and in addition to the above review, "in the early re-employment allowance that the plaintiff received in accordance with recognition of the secondary eligibility for benefit, where the plaintiff re-employments the business owner who left the last place of employment, who has left the last place of employment" under the proviso of Article 84 (1) 1 of the Enforcement Decree of the Employment Insurance Act, "in the case where the qualified recipient re-employments the business owner who left the last place of employment" shall be determined on the basis of the business of the Dispute Resolution Co., Ltd. which is the basis for recognition of the secondary eligibility for benefit

For this reason, the plaintiff's re-employment to the head office of the Dispute Resolution Co., Ltd. within the prescribed period of time after being employed in the "S-35 in the "S-35 in the "S-35-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-

3) It is difficult for the Plaintiff to interpret the above provisions solely on the grounds cited in (b)(1) and conclude a different conclusion. Moreover, the issue and purport of the Supreme Court decision cited by the Ministry of Health and Welfare as a result of the Plaintiff’s assertion in (b)(2) do not change the matter in this case or affect the conclusion in this case.

4) Therefore, the Plaintiff’s assertion is without merit and the instant disposition is lawful (On the other hand, the Plaintiff’s re-employment is objectively recognized through the active job-seeking activities as stipulated in Article 108(2) of the Enforcement Rule of the Employment Insurance Act, and there is also lack of evidence to acknowledge it).

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.