(영문) 대전지방법원 2015.1.15. 선고 2014구합102769 판결

The disposition taken by the Defendant against the Plaintiff on November 29, 2013 to restrict the payment of unemployment benefits, order to return, and additional collection shall be revoked.

Reasons

1. Details of the disposition;

The following facts may be acknowledged if there is no dispute between the parties, or if the whole purport of the pleadings is added to the statements in Gap evidence 1, 2, and Eul evidence 1 through 6:

A. On August 30, 2010, the Plaintiff, a foundation, was on duty at the Seocheon-gu Daejeon Foundation B and was unemployed on August 20, 2010, and applied for recognition of eligibility for employment insurance benefits to the Defendant on August 30, 201, recognized the eligibility for benefits of KRW 180 days for a fixed wage and KRW 29,592 for a daily amount of job-seeking benefits. From September 6, 2010 to January 19, 201, the Plaintiff received KRW 4,024,480 as job-seeking benefits.

B. In addition, on August 26, 2011, the Plaintiff claimed early re-employment allowance from the Defendant on the grounds that the Plaintiff was re-employed as an insurance solicitor to the Yeongi Insurance Agency Co., Ltd. (hereinafter “instant company”) as of January 21, 201, and received KRW 636,220 from the Defendant.

C. Meanwhile, as of November 29, 2013, the Defendant rendered a decision to restrict the payment of unemployment benefits to the Plaintiff, to return KRW 2,086,220, and to additionally collect KRW 1,287,240 (hereinafter “the instant disposition”). The grounds for the disposition the Defendant stated in the instant disposition are as follows: “The grounds for the disposition that the Plaintiff reported to the Defendant as of January 21, 201, as of December 15, 201, was not the fact that the Plaintiff reported to the Defendant as of the date of reemployment, but the Plaintiff received unemployment benefits without making a proper report even if the Plaintiff was employed in the instant company by being granted the insurance solicitor code as of December 15, 2010.”

D. On December 18, 2013, the Plaintiff dissatisfied with the instant disposition, filed a request with an employment insurance examiner for review on December 18, 2013, but was dismissed on February 19, 2014. On March 5, 2014, the Plaintiff filed a request for review by the Employment Insurance Review Committee, but was dismissed on April 9, 2014.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant company’s granting insurance solicitor code to the Plaintiff is limited to receiving education on insurance solicitation by January 201. However, during the aforementioned education period, there are many cases where insurance solicitors retire during the above education period, and insurance premiums to be paid to the principal and his/her family members are more likely to be paid during that period, and thus, it is unreasonable to view it as income, in light of the fact that the allowances are paid for the actual insurance solicitor even after the education period, and that the allowances are paid for the actual insurance solicitor after the education period. Nevertheless, the instant disposition made by the Defendant deeming the date of granting insurance solicitor code as the date of employment is unreasonable.

B. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

C. Determination

(1) Article 40(1)2 of the Employment Insurance Act provides that a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall be entitled to receive, job-seeking benefits from the date on which he/she received, or attempted to receive, all or part of the job-seeking benefits, and in addition, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means is entitled to receive, the amount equivalent to the amount of the job-seeking benefits received by the person who has received, or attempted to receive, such benefits. According to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the Employment Insurance Act, an eligible recipient shall file a report stating the fact in the first application for unemployment recognition after the date on which he/she provided, if he/she provided, labor during the period subject to unemployment recognition, and Article 61(1) and Article 62(1) of the Employment Insurance Act provides that a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means is entitled to collect an amount below the amount of job-seeking benefits.

(2) Regarding the instant case, the following circumstances acknowledged by the entire purport of argument as to the facts and evidence Nos. 2 through 6, namely, ① the instant company submitted to the Korea Workers’ Compensation and Welfare Service a report on entry into a special type of employment insurance policy on the ground that the Plaintiff was working as an insurance solicitor from December 15, 2010, and the Plaintiff was commissioned as an insurance solicitor since December 15, 2010; ② the status of the insurance solicitor was recognized from the date of being registered as the insurance solicitor; ③ even if the Plaintiff had no choice to receive the insurance premium under the name of the principal and his family members, it should be viewed as receiving insurance premium separate from the benefits of the insurance, ④ the date of income generated from the activities that constitute the cause of profit-making activities, and thus, the Plaintiff cannot be determined as being subject to a disposition of unemployment benefits allowance for which the Plaintiff was commissioned for more than six months, taking account of the fact that the Plaintiff was not paid for the insurance solicitor’s income generated during the period of job-seeking benefits payment.

(3) Therefore, the Plaintiff’s assertion is difficult to accept.

3. Conclusion

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