(영문) 서울행정법원 2012.2.10. 선고 2011구합33303 판결

A. On October 25, 2010, the Plaintiff: (a) was engaged in a tax business under the trade name of “D Tax Accounting Office” in Seoul, Gangnam-gu Seoul; (b) was to employ job seekers E (hereinafter “instant workers”) who were unemployed on October 25, 201 through the arrangement of employment security offices; and (c) drafted a written employment contract stating “the contract term from October 25, 201 to October 24, 201” (hereinafter “the instant employment contract” and “the initial employment contract”).

B. On February 8, 2011, pursuant to Article 23 of the Employment Insurance Act and Article 26 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22063, Dec. 31, 2010; hereinafter the same), the Plaintiff applied for a new employment promotion incentive (hereinafter referred to as “instant application”) to the Defendant (hereinafter referred to as “instant application”). On February 16, 2011, the Defendant rendered a disposition rejecting payment on the ground that the instant employment contract term was set and the instant period was not set, pursuant to Article 26(1) of the Enforcement Decree of the Employment Insurance Act; Articles 44(3)1 and 15(1) of the Enforcement Rule of the Employment Insurance Act, and Article 44(3)1 and 15(1) of the Enforcement Rule of the Employment Insurance Act.

C. On March 2, 2011, the Plaintiff re-written a new employment contract that did not specify the termination period of the employment contract between the instant employee and applied for the payment of grants again to the Defendant. However, on March 3, 2011, the Defendant rejected the Plaintiff’s application (based on recognition). [In the absence of dispute, the Plaintiff’s application was rejected, as indicated in subparagraphs 1 through 5, 1 (including the temporary number; hereinafter the same shall apply), 2, and 4, and the purport of the entire pleadings, as a whole.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

At the time of the instant employment contract, the Plaintiff and the instant employee agreed not to set the term of the employment contract, and the Plaintiff merely stated that the expiration date of the term of the original employment contract, which is in accordance with the form of the standard employment contract written on the website of the Ministry of Employment and Labor, was printed in the same fluent letter, and thus, should be stated therein. Therefore, the instant disposition that deemed the term of the employment contract was set is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

1) On the other hand, there is no provision that the term of the original employment contract shall be automatically renewed or extended unless the Plaintiff expresses his/her intent to refuse the renewal of the contract within a certain period. Meanwhile, on April 1, 2010, the term of the employment contract in the same form prepared by the Plaintiff with the worker F is only stated on April 1, 2010, and the term of the employment contract is not separately stated.

2) From 2004 to 2011, the Plaintiff received incentives for employment promotion on 23 occasions. In particular, the Plaintiff received incentives on July 7, 2010 with respect to the employment contract with F, for which the termination date of the employment contract was not stated, on October 201, and on February 3, 2011, with respect to the employment contract with F, which was not stated in the above employment contract. 3) Examining the forms of employment of the employees belonging to the instant workplace for about 12 years, the Plaintiff was serving less than one year among the total 35 workers, and serving not less than 29 workers, and serving not less than one year and serving not less than 1 year and serving not less than 82% for three retired workers, respectively.

[Reasons for Recognition] Uncontentious Facts, Entry of Evidence Nos. 4 through 7, the purport of the whole pleadings

D. Determination

According to Article 23 of the Employment Insurance Act, the Minister of Employment and Labor may provide necessary support to facilitate employment of those who have difficulties in finding employment, and Article 26(1) of the Enforcement Decree of the Employment Insurance Act provides that where a business owner who newly employs those who have been unemployed in excess of a certain period of unemployment through an employment security office, etc. does not resign from employment through employment adjustment for a certain period of time, a new employment promotion subsidy shall be paid to those who are prescribed by Ordinance of the Ministry of Employment and Labor, including short-term workers, etc. The employment contract shall be excluded. Articles 44(3)1 and 15 subparag. 1 of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 17, Jan. 3, 2011; hereinafter the same shall apply) excludes those who have determined the period of employment contract from those who are eligible for new employment promotion subsidy for workers, regardless of whether the employment contract in this case is subject to a fixed period of employment or not, it is merely 207 times to determine the period of employment contract.

In this context, we examine whether the plaintiff and the worker of this case were erroneously written in error or merely in the form of the determination of the contract term despite having written the original employment contract for a fixed period of time. In light of the following circumstances acknowledged by the facts and the purport of the entire argument, i.e., (i) the details of subsidies for the workplace of this case (No. 6-2), the plaintiff, even before the application of this case, has applied for subsidies and received subsidies by preparing a written employment contract with the worker F which did not separately state the termination date of the employment contract. Thus, the plaintiff's assertion that the plaintiff should have to state the termination date of the employment contract in the employment contract is difficult to accept, and (ii) the practice between the workers of this case and the employment contract of this case, which were less than one year and the first employment contract of this case, are merely merely a form of the original employment contract, and it is difficult to regard that the contract term of this case and the employment contract of this case between the plaintiff and the worker of this case should not be objectively reflected in the form of the employment contract of this case.

Therefore, the disposition of this case that did not accept the application of this case is legitimate, considering that the term of the employment contract of this case is fixed, and the plaintiff's assertion is without merit.

3. Conclusion

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

Judges

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

Note tin

1) At the time of the instant application, the Enforcement Decree of the Employment Insurance Act amended by Presidential Decree No. 22063 on December 31, 2010 was in force, but Article 8 of the Addenda thereto was in force.

Article 26 of the Enforcement Decree of the amended Act applies to the first employment of the unemployed after January 1, 201, the enforcement date of the amended Act, and thus, the new provision of the new case is applied.

Article 26 of the Enforcement Decree of the former Enforcement Decree shall apply to the Office.