(영문) 인천지방법원 2011.11.2. 선고 2010구합4937 판결

1. On January 12, 2010, the Defendant issued an order to return a subsidy of KRW 4.8 million to the Plaintiff, the imposition of additional collection of KRW 9 million, and the disposition to restrict the payment of various encouragements and subsidies from January 15, 2009 to October 21, 2010 shall be revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On November 6, 2008, the Plaintiff employed B on November 6, 2008 and applied for a subsidy for employment security business (new employment promotion subsidy) to the Defendant, and received new employment promotion subsidy of KRW 4.8 million in total over ten times from January 15, 2009 to October 22, 2009 as follows.

A person shall be appointed.

B. The Defendant: (a) made an ex post request for assistance for the purpose of receiving subsidies in the employment process of B; and (b) made and submitted a confirmation document stating the actual and false employment channel (hereinafter “employment support center”) and interview date (hereinafter “the date of October 30, 2008”); and (c) subsequently dismissed the Plaintiff’s request for administrative appeals against the Plaintiff’s new employment promotion subsidy from 100,000 won to 200,000 won to 35 of the former Employment Insurance Act (amended by Act No. 10339, Jun. 4, 2010; (b) dismissed the Plaintiff’s request for administrative appeals against the Plaintiff’s new employment promotion subsidy from 200,000 won to 100,000 won to 200,000 won to 200,000 won to 209,000 won to 20,000 won to 19,000 won to 20,000 won.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4 through 7, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff did not know that the effective period of the registration of job seeking B had expired at the time of the employment of B (the plaintiff asserts that the plaintiff did not employ B or would have adjusted benefits if he knew of the above fact). After being aware of the above fact, the plaintiff requested the extension of the registration of job seeking and the mediation of the extension of the registration of job seeking with the guidance of the employment support center. The plaintiff asserts that the disposition of this case was unlawful since it mispers the facts, and it violated the principle of protecting trust in the employment support center's guidance.

B. Relevant statutes

It is as shown in the attached Form.

The following facts are either in dispute between the parties or in accordance with each of the aforementioned evidence, Gap evidence Nos. 9, 10, 11, and Eul evidence No. 3 (including additional numbers), witness B, and C, and there is no counter-proof.

(1) When D, an employee, entered a maternity leave for three months due to childbirth, the Plaintiff applied for the registration of job offer on May 13, 2008 to recruit one of the personnel and one of the general employees on the Employment Security Information Network, and then renewed the registration on July 14, 2008 and September 16, 2008.

(2) B, upon reporting the above job offer registration, contacted the Plaintiff and having interviewed with the Plaintiff on July 24, 2008, but the Plaintiff renounced his employment to disclose his intention to employ as a temporary employee. B, in the process, he became aware of the favorable fact for employment to apply for job-seeking registration on the Worknet, and applied for job-seeking registration using the Plaintiff’s computer on the same day.

(3) The Plaintiff filed an application for temporary employee for childcare leave on October 29, 2008 without seeking temporary employee until the end of D’s childbirth leave ( October 31, 2008) and carried out an interview with B on October 29, 2008. During that process, the Plaintiff became aware of the expiration of the term of validity of the job seeking registration filed by B on October 2008, when confirming whether B is a person eligible for youth unemployment support.

(4) Accordingly, on October 29, 2008, the Plaintiff had B extend the term of validity of job-seeking registration and apply for mediation request using the Plaintiff’s computer according to the guidance of the employment support center.

(5) On November 6, 2008, the Plaintiff employed B, and related thereto, submitted to the Employment Support Center each written confirmation (Evidence No. 1-9) stating the employment route B as “Referral of Employment Support Center” (C, B), and the interview date as “ October 30, 2008 (B)” (Evidence No. 1-9) to the Employment Support Center, and applied for and received new employment promotion incentives over ten times as seen earlier.

D. Determination

(1) Article 23 of the former Employment Insurance Act (amended by Presidential Decree No. 1039, Jun. 4, 2010; hereinafter the same) and Article 26 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provide that the new employment promotion incentive system, under the ordinary conditions of the labor market, shall be provided to the employers who employ the aged, disabled, long-term job seekers, and young people, etc. (hereinafter referred to as the "persons belonging to the employment vulnerable group"), should be provided to the employment security office for the promotion of employment by supporting the employment promotion plan to those belonging to the employment vulnerable group. It means that the employers are not entitled to the employment promotion subsidy if they are under employment conditions after applying for the employment promotion. It means that the employment promotion incentive system, such as those who belong to the employment vulnerable group, should be considered as one of the requirements for receiving the new employment promotion subsidy, and thus, it means that the employment security office has the employment promotion company's competitiveness.

However, there may be cases where a business owner has the intent to immediately employ persons belonging to the vulnerable class in employment, regardless of whether or not to pay the new employment promotion subsidy, regardless of the business owner’s qualifications and capabilities required by the business owner. Nevertheless, if the business owner received the new employment promotion subsidy through the intermediation, etc. of employment security offices, etc. formally with hiding such fact, it constitutes “any false or other unlawful means” under Article 35 of the former Employment Insurance Act. If an administrative agency takes unfavorable administrative disposition against the relevant business owner, such as restitution, etc. for such reason, and files an appeal seeking cancellation of such disposition, the business owner bears the burden of proving that the business owner received the new employment promotion subsidy through the procedure of intermediation, etc. (see Supreme Court Decision 2010Du28373, Aug. 18, 2011).

(2) In light of the above legal principles, the plaintiff, after having interview B, could have expressed his/her intent to employ B only when he/she is able to receive the new employment promotion subsidy through the referral of the employment support center as alleged by the plaintiff (the plaintiff seems to have been such intention according to the above facts of recognition). Thus, it cannot be readily concluded that the plaintiff, just because the plaintiff has undergone the interview with B, has confirmed his/her intention to employ B immediately. On the other hand, the burden of proving that the plaintiff had the intention to immediately employ the people belonging to the vulnerable group prior to the referral of the employment support center was borne by the defendant. However, even if all of the evidence submitted by the defendant, it is insufficient to recognize this point. Further, even if the plaintiff had conducted a prior interview with the employment support center prior to the referral of the employment support center, it is difficult to employ the plaintiff without having expressed his/her intention to employ B, and if he/she had expressed his/her intention to receive the new employment promotion subsidy, he/she cannot be viewed as having presented the new employment promotion support center's procedure and new employment promotion subsidy to the defendant.

(3) Therefore, the instant disposition made by the Defendant on a different premise is all unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted in its entirety on the grounds of its reasoning, and it is so decided as per Disposition.