(영문) 인천지방법원 2020.11.26. 선고 2020구합521 판결

On April 4, 19.19.8, the Defendant’s restriction on the payment of employment insurance benefits for 12 months (from April 3, 2019 to April 2, 2020) against the Plaintiff, the order to return the amount of subsidies for employment promotion, and the order to additionally collect 36 million won based on the fraudulent receipt.

Reasons

1. Details of the disposition;

A. From May 1, 2016, the Plaintiff is a company that had been engaged in the business of manufacturing yellow products in Kimpo-si B. The Plaintiff’s representative director C operates a personal business entity (hereinafter “individual business entity of this case”) that operates the business of manufacturing yellow products in the name of “D” from November 2007 and at the same place. A, the Plaintiff was established and operated around May 2016.

B. Under Article 26 of the Enforcement Decree of the Employment Insurance Act, the employment promotion support fund is a system for promoting the employment of those who have difficulty in finding a job under the ordinary conditions of the labor market, ① completing the employment support program publicly notified by the Minister of Employment and Labor, ② employing the unemployed who registered a job seeking, ③ maintaining employment for at least three months by hiring them as insured. The Plaintiff asserted that “the employment relationship was maintained for at least three months by newly employing workers E and F (hereinafter “instant workers”) for the period from January 2, 2016 to June 1, 2017.” The Plaintiff applied for the employment promotion support fund and received the subsidy in total from June 2, 2016 to June 1, 2017 (hereinafter “instant subsidy”).

A person shall be appointed.

D. On April 3, 2019, the Defendant issued a restriction on the payment of employment promotion subsidy for 12 months (from April 3, 2019 to April 2, 2020) pursuant to Article 35(1) and (2) of the Employment Insurance Act to the Plaintiff on the ground that the Plaintiff received the instant subsidy, and issued a return order of 18 million won for the amount of the fraudulent receipt of the employment promotion subsidy, and issued an additional collection disposition of 36 million won for the wrongful receipt (hereinafter collectively referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4 (including provisional number; hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) First, the Plaintiff did not receive subsidies by fraud or other improper means in relation to the instant workers. The instant workers are those employed by the instant individual business entity as a day-to-day employee, and the Plaintiff regularly employed them on June 1, 2016, and thus constitutes eligible for subsidies for promotion of employment.

2) Second, the Plaintiff filed an application for subsidies with the belief that the Plaintiff satisfies the qualifications and requirements for receiving subsidies according to the public official’s guidance by the Defendant, and did not know that the instant workers did not meet the said requirements. The instant disposition, which did not sufficiently consider such special circumstances and disadvantage the Plaintiff and its employees, violated the principle of trust protection, or deviates from and abused discretionary power.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) “False or other unlawful means” under Article 35(1) of the Employment Insurance Act with respect to the Plaintiff’s first assertion refers to any act that is not correct by social norms in order to encourage a person who is not eligible to receive subsidization of expenses, or to conceal the fact that he/she is disqualified, and that is affirmative and passive acts that may affect the decision on subsidization of expenses (see, e.g., Supreme Court Decision 2013Du1980, Oct. 30, 2014).

In full view of the purport of the arguments as indicated in No. 8, No. 9, No. 1, No. 3, and No. 10 to No. 14, and No. 2, the Plaintiff reported to the Defendant on February 27, 2019 that “F” was 10,000,000 won for the first 6th 0th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 106th 6th 6th 6th 6th 6th 106th 6th 106th 6th 200 3th 106th 206th 20.

We examine these facts in light of the aforementioned legal principles. The instant workers were employed by the instant individual company at the time of completion of the employment success key around May 2016 and around June 1, 2016, and were employed by the Plaintiff, and do not constitute the unemployed. Thus, the instant workers do not constitute those eligible for employment promotion subsidies under Article 26(1)1 and (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016; hereinafter the same shall apply). Nevertheless, the Plaintiff received the instant subsidy by means of appearance as the unemployed who duly completed the employment success key properly at the time of employing the instant workers on June 1, 2016. Thus, the Plaintiff constitutes a person who received the instant subsidy as “false or any other unlawful means” under Article 35(1) of the Employment Insurance Act and is subject to the instant disposition under Article 35(1) and (2) of the Employment Insurance Act.

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Therefore, we cannot accept this part of the plaintiff's argument.

2) As to the second argument by the Plaintiff

A) There is no evidence to deem that the Defendant or his employee made a speech and behavior to the effect that the Plaintiff satisfies the requirements for the payment of the employment promotion subsidy in the course of receiving the instant application for the subsidy. Therefore, the part of the allegation that the instant disposition is in violation of the principle of trust protection cannot be accepted.

B) Article 35(1) of the Employment Insurance Act provides that “The Minister of Employment and Labor shall order a person who has received support from employment security programs by fraud or other improper means to return the amount of support received by the person by fraud or other improper means.” In light of the text and content of such provision, the order to return the subsidy under the above provision constitutes a binding act. Therefore, there is no room to discuss whether the part of the order to return the subsidy among the instant disposition is deviates from or abused by discretion.

Furthermore, with respect to the restriction on the payment of subsidies for 12 months and the imposition of KRW 36,00,000 among the dispositions in this case, the period of restriction on the payment of subsidies for 12 months and the period of restriction on the payment for 12 months among them shall conform to the standards for restriction on the payment under Article 56(2) [Attachment 2] of the former Enforcement Decree of the Employment Insurance Act. The amount of the above collection disposition conforms to the standards under Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 292 of Aug. 28, 2020), and the need for public interest to promote the efficient and transparent operation of employment promotion subsidies through the institution of illegal receipt and demand, even if considering the disadvantage of the Plaintiff due to this part,

It is difficult to view it as being.

C) Therefore, the Plaintiff’s assertion on this part cannot be accepted.

3. Conclusion

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