(영문) 서울행정법원 2012.3.23. 선고 2011구합28585 판결

1. The Defendant’s revocation of the restriction on the payment of unemployment benefits, the order to return, and the disposition of additional collection against the Plaintiff on December 21, 2010.

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

Purport of claim

The same is as the order (as of December 29, 2010 in the purport of the claim) (as of December 21, 2010, it is a clerical error in the text of the order).

Reasons

1. Details of the disposition;

A. On November 21, 2007, the Plaintiff applied for recognition of eligibility for employment insurance on the ground that he/she worked as a daily worker at the toilet improvement work site in Songpa-gu Seoul, Songpa-gu, Seoul. On November 21, 2007, the Plaintiff was paid job-seeking benefits of KRW 6,000,000 in total from November 28, 2007 to April 25, 2008 after obtaining recognition of eligibility for benefits of KRW 150,000,000 for the fixed benefit payment day and KRW 6,00,000,000 for the period from November 28, 2007 to April 25, 2008.

C. On January 6, 2011, the Plaintiff filed a request with an employment insurance examiner for review seeking revocation of the instant disposition, but was dismissed on February 17, 201, and on May 9, 2011, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee, but was dismissed on June 13, 201.

[Ground of recognition] Evidence Nos. 1, No. 1 to 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Based on the data of the employment insurance network reported by C (hereinafter referred to as “C”) and the data submitted by C, the Defendant rendered the instant disposition to the Plaintiff on the ground that the Plaintiff had engaged in work for 14 days prior to the date of application for recognition of eligibility for employment insurance benefits, and was paid job-seeking benefits. However, the Plaintiff did not have engaged in work for 10 days or more prior to November 21, 2007, which is the date of application for recognition of eligibility for employment insurance benefits, and the data submitted by C cannot be trusted, and thus, the instant disposition is unlawful.

B. Relevant statutes

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

1) On November 21, 2007, the plaintiff prepared an application for recognition of eligibility for employment insurance and submitted it to the defendant. The plaintiff entered "C (State) New Construction Work" in the last place of business in the above application as "B middle school", and corrected "B" in the column of departure from employment, and corrected "B" on August 30, 2007, and entered the fact that the number of working days per month prior to the date of application for recognition of eligibility for benefits is less than 10 days.

2) After the issue of job-seeking benefits that the Plaintiff received was at issue, the Plaintiff took place around October 2007, and had worked for about 15 days in D, and the Plaintiff alleged that the Plaintiff erred in making the final departure from employment and the departure from employment, or that it erred by mistake, and that the Plaintiff did not change the fact that the number of working days during the one-month period prior to the date of applying for recognition of eligibility for benefits is less than 10 days.

3) With respect to the working days of the Plaintiff’s application for recognition of eligibility for benefits, the details reported to the Employment Insurance Policy Council on the daily employment status of daily workers at the Employment Insurance Computer Network are as follows. According to such contents, the Plaintiff was employed for 14 days from the 2007.10, November 20, 2007 to November 20, 2007.

* F fire-fighting system supplement works - From October 12, 2007 to October 18, 2007

* G 소방설비 설치 및 이설공사 - 2007.10.19. ~ 2007.10.25. 및 2007.10.28.-2007. 10. 30. ★ 소방시설 보수공사(H 전산센터) - 2007. 10, 26. 및 2007. 10. 27. * 구조동3층 재료팀 서비스기술팀 소방시설 보완공사(I 연구소) - 2007.11.17. ~ 2007.11. 29.

4) The report of the above contents is C. Since around October 2007 and around November 1, 2007, C received data concerning the usage of daily employed workers and the amount of personnel expenses from E by facsimile, etc., and made a report as referred to in the above 3).

5) Meanwhile, the Plaintiff was transferred KRW 1,480,00 from E on November 16, 2007 to the account. [Grounds for recognition] Evidence Nos. 1, 2, Eul’s 1, 3, 4, Eul’s 10, 12, Eul’s 13 through 17, Eul’s 21 through 23, Eul’s 27, 29, and the purport of the whole pleadings

D. Determination

1) "False or any other fraudulent means" under Article 61 (1) of the Employment Insurance Act refers to any unlawful act by which a person ineligible for benefits disguises eligibility for benefits, or conceals the fact of employment or the occurrence of income (see Supreme Court Decision 2002Du7494, Sept. 23, 200).

2) Article 40(1)5 of the Employment Insurance Act provides that the number of days worked during the one-month period prior to the date of applying for recognition of eligibility for benefits under Article 43 of the Employment Insurance Act shall be less than 10 days for job-seeking benefits. If the Plaintiff received job-seeking benefits by stating that no such fact exists in an application for recognition of eligibility for employment insurance even though he/she has worked for not less than 10 days within the one-month period prior to the date of applying for recognition of eligibility for benefits, it shall be deemed that the Plaintiff received job-seeking benefits by fraudulent or other illegal means. As to whether the Plaintiff had worked for not less than 10 days during the one-month period prior to the date of applying for recognition of eligibility for benefits, whether the Plaintiff had worked for not less than 14 days during the 14-month period prior to the date of applying for recognition of eligibility for benefits, it shall be deemed that the Plaintiff received job-seeking benefits by means of fraudulent or other unlawful means, and thus, it shall not be deemed that the Plaintiff received any false payment record or other evidence as mentioned above.

Between the OC and E, the contract amount was set in advance at KRW 20,400,000,000 in total, and E, while performing the construction work by recruiting workers necessary for the above construction work, C claims for personnel expenses in line with the construction amount. Accordingly, C is carried out in accordance with the method of paying the construction amount. Accordingly, E, in accordance with the construction amount, where E requests for construction cost by facsimile, by sending data on daily employed workers and the amount of personnel expenses in line with the construction amount.

Since the payment of the promised construction cost was made, there was no need to verify the data on the usage of daily workers at issue, and there was no fact that there was no actual verification. C also has the view that the data sent by E could not be ruled out the possibility that the data reported differently from the actual ones.

If ○○ E transfers data on the usage of daily workers and the amount of personnel expenses in accordance with the pre-determined construction cost, it is not reasonable to prepare the said data accurately according to the facts, and thus, it cannot be ruled out that the said data has been prepared arbitrarily, contrary to the facts.

The evidence Nos. 12 and 14 appears to have been prepared in the same manner as the data submitted by the plaintiff, J, K, L, M, N, andO all of the above four construction works are deemed to have been conducted on the basis of the data submitted by the plaintiff, J, K, L, N, andO. It is not easy for the plaintiff to have all different four construction sites to have been invested in the same number of the above four construction works. Rather, this fact seems to be against E to have high possibility of preparing data according to E's convenience. ② Of daily workers who were invested in the above four construction works is calculated on November 22, 2007 (I Research Institute) and there is an error in itself; ③ The plaintiff's application for approval of the above construction work cost is deemed to have worked on the same research institute on November 21, 2007, which is the date of application for recognition of eligibility for benefits, and it seems to be difficult for the plaintiff to obtain the above construction work cost on the basis of the fact that it is against the Seoul National Labor Agency's physical Work.

OE received money from C and paid some of them to the Plaintiff (the same shall apply to the remaining persons who performed the work as the Plaintiff). The Plaintiff was urged to receive KRW 1,480,000 from E on November 16, 2007, but the source of the money is considered KRW 42,00,000 transferred from E on November 15, 2007 and the amount seems to have been paid as KRW 42,00,00,000, as claimed by the Plaintiff (the Plaintiff did not entrust D related work to E).

○ The Plaintiff stated some different contents in the application form for recognition of eligibility for employment insurance. In addition, the Plaintiff had worked for at least ten days during one month prior to the date of application for recognition of eligibility for benefits. It cannot be recognized that the Plaintiff had worked.

3) Meanwhile, the defendant asserts to the effect that the plaintiff received job-seeking benefits as long as the final place of business and the date of severance from employment were falsely prepared in the application for recognition of eligibility for employment insurance benefits, but such reason is difficult to deem the identity of the grounds for the instant disposition and the basic factual relations, and as long as the fact that the final place of business and the date of severance from employment were falsely prepared (if the final place of business and the date of severance from employment were prepared, the circumstance that the recipient could not be recognized) was not revealed, it cannot be viewed as a case where job-seeking benefits was received in a false or other unlawful manner on the ground that some false facts were stated in the application for recognition of eligibility for employment insurance benefits. Thus, the defendant's argument

4) Therefore, the instant disposition is unlawful as the grounds for disposition did not exist.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.