(영문) 수원지방법원 2012.8.9. 선고 2012구합4433 판결

On August 9, 2011, the defendant's refusal to pay the employment improvement subsidy for small and medium enterprises and revocation of the restriction on payment to the plaintiff.

Reasons

1. Details of the disposition;

A. On July 30, 2010, the Plaintiff, who is engaged in the manufacturing business under the trade name B, submitted a plan to improve the employment environment that “to improve the employment environment by extending the physical training room, book room, dormitory, toilet, shower room” to receive support for improving the employment environment under Article 20 of the Employment Insurance Act. The Defendant approved the improvement plan on October 29, 2010.

B. After completing the improvement of the employment environment on January 25, 201, the Plaintiff filed an application with the Defendant for the payment of KRW 34,760,60 to the Defendant of the increased number of employees as a result of the improvement of the employment environment on April 18, 2011 (hereinafter “former application”). Accordingly, if the Plaintiff was employed on July 1, 201, the Defendant did not include two average workers for the three months immediately preceding the month in which the date of submitting a plan for the improvement of the employment environment belongs (from April 2010 to June) and two months following the month in which the date of completing the improvement of the employment environment belongs (from January 3, 201 to January 3), the Plaintiff did not comply with the previous disposition under Article 10 of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 26035, Dec. 31, 2010; hereinafter the same).

D. Since then, at the time of the previous application of this case, the Plaintiff applied for the payment of employment improvement subsidies to the Defendant again on June 17, 201, along with a written employment contract and wage ledger that changed the employment date of the employee D, which was the date of employment as of February 16, 201, to January 3, 2011 (hereinafter “instant application”).

E. Accordingly, on July 13, 2011, the defendant investigated D's actual employment date by confirming D's benefit passbook, etc., and judged that D's employment was employed by the plaintiff from the beginning of November 2010, and confirmed that D's employment contract and benefit ledger, etc. were to be prepared and submitted to the plaintiff as if the plaintiff newly employed the worker D who had worked in the workplace from before the improvement of the employment environment after the completion of the improvement of the employment environment. Thus, this constitutes a case where the plaintiff intends to receive the subsidy by false or other unlawful means under Article 56 of the former Enforcement Decree of the Employment Insurance Act, without paying the subsidy for which the application was made, and was subject to a disposition restricting the payment of subsidy for one year from July 26, 201 (hereinafter "the disposition of this case").

[Reasons for Recognition] Facts without dispute, entry of Eul in the evidence of Nos. 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, due to the shortage of human resources, employed D as a training employee on or before February 16, 201, because it is inevitable for the Plaintiff to newly employ a worker during the period of the extended work. However, at the time of the completion of the construction work, the Defendant’s public official in charge at the time of the completion of the construction work is employed as a training employee on or before February 16, 201, and the month to which the completion date of the improvement of employment environment belongs, and the next two months’ monthly average number of workers should be increased. As such, the Plaintiff did not inform the public official in charge of the said extended construction that one employee

Nevertheless, it is deemed that the previous disposition of this case where the increased number of employees is less than one and refused to pay subsidies was unfair, and when filing the instant application, it was intended to reflect D as the number of employees in January 201 by filing a revised employment insurance report from February 16, 201 to January 3, 2011, and thus, it did not want to receive subsidies in an unjust manner.

Therefore, there is no ground for the instant disposition.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) “False or other unlawful means” generally mean all active and passive acts that may affect the decision-making on the payment of subsidies by a business owner who is not entitled to receive subsidies to pretend or not entitled to receive subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009);

2) First, we examine whether the Plaintiff is eligible to receive employment improvement subsidies.

Article 7(1)2 of the former Regulations on the Payment of Employment Improvement Subsidies for Small and Medium Enterprises (Notice of Ministry of Employment and Labor No. 2010-16, Oct. 11, 2010; hereinafter referred to as the "Notice of this case") established to determine matters concerning the application, payment, etc. of employment improvement subsidies pursuant to delegation under Article 15(2) of the former Enforcement Decree of the Employment Insurance Act provides that "the average monthly number of workers (excluding the number of workers employed from the date of submitting the improvement plan to the date of completing the improvement of employment environment) of the month to which the date of completing the improvement of employment environment belongs and the next two months shall exceed the average monthly number of workers for three months immediately preceding the month to which the date of submitting the improvement plan belongs." Article 8(3) of the Notice of this case provides that if the average monthly number of workers increased under Article 7(1) of the above Decree is less than one, it shall not be deemed that

Comprehensively taking account of the purport of Eul evidence 3-1 through 5, the plaintiff submitted a labor contract of 10.2 from February 15, 2011 to 2012, 215; 8 hours of work hours; and 1.2 million won per month from February 15, 2011 to 1.20; 6.10 billion won per month from January 3, 2011 to January 3, 2012; 10.6 billion won per month from January 3, 2011; 201.6 billion won per month from January 3, 201 to January 1, 201; 201.6 billion won per month from January 1, 201; 1.6 billion won per month from January 3, 2011 to 2000 won per month from the date of the previous application; and 2010,000 won per month from 200 won per month from the date of the application.

On or before February 16, 201, the Plaintiff asserted that the employment date should be seen as February 16, 201, because D was not a full-time worker, but a full-time worker, but a full-time worker. However, even according to the assertion, the monthly average worker from January 201 to March 201 of the following two months is 2.6, and the monthly average worker from January 201 to March 201 of the same year is 0.66 more than the monthly average worker from April 2010 to June 3 of the same year, which falls under the three months immediately preceding the month in which the date of submitting the plan for improving the employment environment is submitted. Thus, if the monthly average worker is less than one, the increase in the number of the Plaintiff’s employment workers would not be considered as the increase under Article 8(3) of the Notice.

Therefore, the plaintiff is not entitled to receive the employment improvement subsidy from any mother.

3) Furthermore, examining whether the Plaintiff seeks employment environment improvement subsidies by fraud or other improper means, the Plaintiff was employed on February 16, 201 at the time of the previous application in this case even though the Plaintiff had already been employed and provided with labor around November 2010, and the Plaintiff was employed on January 3, 201 at the time of the previous application in this case, and submitted an employment contract and benefit ledger arbitrarily in accordance therewith. As seen earlier, the Plaintiff’s act was conducted in order to disguise the eligibility to receive employment environment improvement subsidies or to conceal the eligibility to receive such subsidies.

As a result, the defendant's decision-making on the payment of the employment improvement subsidy is an active act that may affect the decision-making. This constitutes an illegal receipt of employment insurance under Article 35 (1) of the Employment Insurance Act and Article 56 (1) and (2) of the former Enforcement Decree of the Employment Insurance Act.

4) Therefore, we cannot accept the Plaintiff’s assertion that there is no ground for the instant disposition.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

The chief judge, chief judge and associate judge

Judges Yellow Jae-ho

Judges Kim Gin-han

Note tin

1) Article 15 of the Enforcement Decree of the Employment Insurance Act, amended by Presidential Decree No. 22603, Dec. 31, 2010, was deleted, but its parts were deleted.

In Article 15 of the Regulations, a plan to improve the employment environment under the former Article 15 shall be submitted and the need for support under the former Article 15.

In light of the above provision, the business owner who had the case was entitled to receive the subsidy under the previous provision, and thus, the Plaintiff’s above provision.

The former Enforcement Decree of the Employment Insurance Act before the above amendment shall apply to the payment of subsidies for the improvement of employment environment.