2011Guhap1250 Revocation of order to refund subsidies for employment security projects

A

Head of the Busan Regional Employment and Labor Agency

September 22, 2011

October 27, 2011

1. The Defendant’s order to return subsidies for employment maintenance and the decision to additionally collect the amount that the Defendant issued against the Plaintiff on March 9, 2011 shall be revoked to the extent exceeding 48,586,440 won.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

On March 9, 2011, the Defendant’s disposition of restricting payment to the Plaintiff for employment security programs (from July 10, 2009 to January 3, 201), ordering return (16,195,480 won) and additionally collecting (67,472,570 won) is revoked.

1. Details of the disposition;

A. The Plaintiff registered its business with the trade name of "C from Masan-si B", and operated a business to assemble CCTV assembly from D Co., Ltd. (hereinafter "D"), using its factory site, machinery, apparatus, subsidiary materials, etc., and then to supply D again. From March 2, 2009 to December 12 of the same year, the Plaintiff filed an application for employment maintenance support payment for nine times on nine times from May 2, 2009 to January 7, 2010, and received 23,501,340 won in total for 70 times from 209 to 10.5 times from 200, 70 times from 200, 70 times to 10.6 times from 20, 70 times to 40 times from 20.6 months from 20, 196, 70 months from 40 months from 20.6 months from 20, 196 months from 208.

D. On March 9, 2011, the Defendant reduced only the amount additionally collected during the instant disposition, and issued an order to return KRW 16,195,480 in total of the unlawful amount of subsidies for retaining employees, issued an order to additionally collect the amount of KRW 67,472,570 (two or five times the unlawful amount of payment) and notified the Plaintiff of the suspension of payment (hereinafter “instant disposition”) for one year, including the principal of the land for employment security projects (from July 10, 2009 to January 6, 2011).

A person shall be appointed.

[Ground of recognition] Facts without dispute, entry of Gap 1 to 6 evidence, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) According to Article 35(1) of the Employment Insurance Act, the amount of support received by fraudulent or other illegal means, not the amount of support already provided, shall be returned. Thus, the Defendant issued an order to return the amount of support payment for a worker who failed to suspend business after ascertaining whether the business was actually suspended for each worker in the pertinent month during the suspension period of business at the Plaintiff’s workplace.

(2) Punishment by applying the provisions of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter referred to as the “Enforcement Rule”) rather than the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter referred to as the “Enforcement Rule of the instant case”) at the time of the instant disposition is inconsistent with the principle of equity or proportionality.

(3) Even if the instant Enforcement Rule applies, the number of times of unlawful acts as a basis for calculating the amount additionally collected under Article 78(1) of the instant Enforcement Rule should be excluded from the pertinent unlawful acts subject to the disposition of additional collection. Since the Plaintiff did not have been discovered prior to the instant disposition, only twice the amount additionally collected should be imposed.

(4) In light of the following: (a) the Plaintiff’s intent is absolutely reflected in the production activities in the relationship with D in simple labor contract; (b) the Plaintiff’s illegal receipt of employment maintenance support payment was made in a special relationship between the will and the inside capital office under law; (c) the net profit of the Plaintiff’s workplace was sharply decreased from the year 2009; (d) there was no choice but to take measures for employment maintenance (suspension) under the Employment Insurance Act; (c) there was 80 workers and their family members by employing 20 workers; and (d) the Plaintiff is against the depth, the instant disposition is too harsh to the Plaintiff compared to the public interest to be achieved.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On March 4, 2010, the Plaintiff’s place of business, who worked from November 26, 2009 to February 9, 2010, inspected at the Employment Support Center on the first day ( November 26, 2009) 13:30 to 14:00, and the first day of the Plaintiff and the second day were equal to that of the Plaintiff. The number of workers working in the form of daily worker was equal. During the period of suspension, the Plaintiff was stated to the effect that the number of workers working in the form of daily worker was equal. The Plaintiff’s total number of workers worked from September 21, 2009 to September 10, 2009 and from September 10, 2009 to October 19, 2010 to September 19, 2000, the Plaintiff’s total number of workers worked in the form of daily worker was 9:0 days from September 21, 2009 to September 19, 2019.

(2) The Plaintiff’s confirmation letter on July 6, 2010 did not proceed as planned during the period of employment suspension (temporary suspension) in April 2009 and only some of the members who worked on holidays.

It is written that the center has submitted false data at the time of application.

(3) On April 30, 209, the Plaintiff paid KRW 1,009,80 (type 3,300; hereinafter the same shall apply), KRW 867,90 on May 31, 2009, KRW 867,90 on July 31, 2009, KRW 768,900 on August 31, 2009, KRW 900 on August 31, 2009, KRW 947,100 on October 30, 209, KRW 953,70 on November 30, 209, and KRW 953,70 on November 30, 209, respectively, to G corporation operating a cafeteria. The specific data on the number of monthly meals and the number of monthly meals for the Plaintiff workers at the Plaintiff’s workplace converted from the actual food paid to G corporation are as follows.

A person shall be appointed.

(4) The Plaintiff was not exposed to illegal receipt of employment maintenance support payment, etc. prior to the instant disposition.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, Eul evidence Nos. 1 through 6, 8, 9, 10, 14 through 19, and the purport of the whole pleadings

D. Determination

(1) As to a disposition of (a) the claim and restriction on payment (from July 10, 2009 to January 6, 201)

(A) As to the assertion of subparagraph (1)

The plaintiff asserted that the defendant ordered the return of the whole amount already subsidized, but according to the statement of the disposition (Evidence A5) of this case, the defendant is found to have ordered the plaintiff to return only the amount received by false or other unlawful means. Thus, the plaintiff's above assertion is without merit.

However, the above assertion also contains the purport that the employment maintenance support payment for the worker should not be included in the return order because the worker was temporarily suspended in accordance with the reported employment maintenance measure plan. Thus, it should be viewed as to whether the reported employment maintenance measure plan reported by the plaintiff was actually implemented.

Considering that subsidies for retaining employees are calculated and paid on a 1-month basis for each worker (Article 19(1)1 of the Enforcement Decree of the Employment Insurance Act), it is reasonable to view that the total amount of supply and demand of each worker is illegal if the amount illegally received during any month. The following circumstances, i.e., E (from November 26, 2009 to February 9), F (from September 21, 2009 to October 20, 2009)’s written answers on the ground that the Plaintiff did not actually provide the Plaintiff’s employees with the above 1-month plan for the period of 1-month period, and that there were no evidence that the Plaintiff did not actually provide the above 4-month period of 7-month period of 7-month period of 1-month period of 1-month period of 4-month period of 7-month period of 4-month period of 7-month period of 2-month period of 3-month period of 4-month period of 2-month period of 3 months-month period of .

(B) As to a disposition of restricting payment (from July 10, 2009 to January 6, 201)

The plaintiff did not make specific arguments regarding the grounds for illegality of the above restriction on payment. However, since the complaint states the purport of seeking the revocation of the claim, we examine the legitimacy of the above restriction on payment.

Pursuant to Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010), the provision that no subsidies, grants, etc. shall be granted for one year from the date on which the Plaintiff received or applied for subsidies, etc. by fraud or other improper means. Since the fact that the Plaintiff received subsidies, etc. from the Defendant during the period from July 10, 2009 to January 7, 2010 is the same as seen earlier, the Defendant shall restrict the payment of various subsidies, grants, etc. to the Plaintiff from July 10, 209 and from January 7, 201, each one year period from July 10, 2009 to January 6, 2011, for which the Plaintiff received subsidies.

(2) As to the claim (A) Article 1 of the Addenda of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338 of Feb. 9, 2010; hereinafter referred to as the "Enforcement Rule") which was in force at the time of the instant disposition, provides that "this Rule shall enter into force on the date of its promulgation," and Article 5 (1) of the Addenda provides that "Notwithstanding the amended provisions of Article 78 (1), additional collection against a person who received subsidies by fraud or other improper means prior to the enforcement of the Rules shall be governed by the previous provisions." Thus, since both the date of application for employment maintenance and the date of payment of the principal and the date of payment of the Plaintiff all after the enforcement date of the instant Enforcement Rule (amended by the Enforcement Rule of the Employment Insurance Act No. 338 of Feb. 9, 2010), the provisions of the instant Enforcement Rule shall be applied to the Plaintiff, as alleged by the Plaintiff, to the point of application of the regulations at the time of disposition shall not be deemed to violate the text and purport of proportionality or proportionality.

(3) As to the assertion of subparagraph (3)

According to Article 35(2) of the former Employment Insurance Act and Article 78(1) of the Enforcement Rule of the instant case, the Minister of Labor may additionally collect, in addition to ordering a person who received subsidies by fraud or other improper means, twice, three times, five times, and five times of the subsidy for illegal receipt in accordance with the frequency of application filed by fraud or other improper means (hereinafter referred to as “number of unlawful electricity”) for the last five years prior to the date of detection of fraudulent acts. The Defendant determined the amount of additional collection for the two times (4 months), three times (5 months), five times (7, 8, 10, and 11 months) by deeming that the Plaintiff’s application for employment maintenance support payment constituted each illegal force.

However, in light of the purport of Article 78(1) of the Enforcement Rule of the instant case, if the number of illegal electricity generated prior to the detection of such illegal electricity is interpreted as including the number of illegal electricity subject to detection in the number of times prescribed by Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act, the above provision is no longer applicable because there is no number of times of such fraudulent electricity. (3) If an application for fraudulent electricity subject to detection and the supply and demand of such fraudulent electricity are viewed as separate power frequency within a certain period of five years, it shall be interpreted that the number of fraudulent electricity generated prior to the detection of such fraudulent electricity constitutes a separate power frequency. (4) The above provision shall not be applied to the case where there is no number of fraudulent electricity generated prior to the discovery of such fraudulent power, and the above provision shall not be applied to the case where the above illegal electricity subject to detection or the above revised one shall not be included in the number of illegal electricity subject to detection in the previous five years prior to the discovery of such fraudulent electricity by the Ministry of Labor or the above revised one of five days prior to the date.

Thus, the disposition of this case is an error of deviation from and abuse of discretionary power within the scope of 48,586,440 won (the sum of 16,195,480 won for April, May, July, August, August, October, October, October, and November of the illegally received amount of employment maintenance support payment + the additionally collected amount of 32,390,960 won (= KRW 16,195,480 x two times).

(4) As to the claim on (A) as to whether the Defendant’s imposition of KRW 16,195,480 and additional collection amounting to KRW 32,390,960, out of the instant disposition, exceeded and abused discretion, the Defendant’s imposition of KRW 16,195,480, and additional collection amounting to KRW 32,390,960, among the instant disposition, is a beneficial benefit specially paid to the business owner who takes measures necessary for employment security in order to achieve the policy objective of contributing to the stabilization of workers’ livelihood and job-seeking activities through the prevention of unemployment and the promotion of employment, etc., and thus, there is a significant need to eradicate the illegal act of the business owner who abused the incentives system in an unlawful manner and to protect the finances of employment insurance. ② Such illegal receipt of employment maintenance support payment such as subsidies is a serious threat to the foundation and order of the employment insurance system, and ③ the Plaintiff’s imposition of KRW 16,915,480 for a long period of time, and thus, the Plaintiff’s additional collection cannot be deemed to be less than 901630.

3. Conclusion

Thus, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as they are without merit.

The presiding judge shall be appointed from among the judges;

Judges, real leaves

Judges Kim Jae-young

1) 242 days = the number of the insured workers x 22 days

2) 95 days = 10 days of temporary closure for six temporary closures + 1 day of temporary closure for three temporary closures + 8 days of temporary closure for three temporary closures

3) 147 days* 242 - 95 days

4) Food service expenses of 1,009,800 won paid by the Plaintiff, 306: one food service expenses of 3,300 won

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.