(영문) 서울고등법원 2017.7.5. 선고 2017누31455 판결

2. The Defendant’s disposition of early re-employment allowance paid to the Plaintiff on October 15, 2015 is revoked. 3. Total costs of the lawsuit are borne by the Defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On July 18, 2014, the Plaintiff: (a) obtained an application for recognition of eligibility for employment insurance from the said company on the ground that he/she retired from employment on July 14, 2014; (b) obtained recognition of eligibility for benefits of KRW 150 days and KRW 18,756; and (c) received a request for reexamination of early re-employment allowance from July 25, 2014 to August 26, 2014, as described in paragraph (b) below (hereinafter “non-employment”); (d) received a request for reexamination of early re-employment allowance of KRW 618,950 for 33 days in total from August 15, 2014 to the Defendant on the ground that he/she was dismissed on December 31, 2014; and (e) received a request for reexamination of early re-employment allowance of KRW 15,000 on the ground that he/she was dismissed on December 16, 2015.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 4, 5, 15, Eul evidence Nos. 1 through 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) From the end of December 2014 to the end of December 31, 2014, the Plaintiff was subject to ex officio dismissal upon receipt of a unilateral notification to work only on December 31, 2014. As a result, the Plaintiff reported the interview from the creative transport around December 29, 2014 to the other company for the purpose of maintaining a livelihood, and the Plaintiff entered into an employment contract with the creative transport service and entered into the employment contract on January 7, 2015 after submitting necessary documents until January 7, 2015. It is reasonable to view that the Plaintiff, who was de facto dismissed, falls under the preparatory period for the work to find a new workplace and whose work has not been substantially interrupted during the said period.

2) Therefore, the Defendant, despite its duty to pay early re-employment allowances to the Plaintiff, was unlawful. The instant disposition taken on the premise of the lower judgment was unlawful.

(b) Relevant statutes: To be listed in attached Form;

C. Determination

1) Method of statutory interpretation

As a matter of principle, since the law is a universal norm with the same binding force against many and unspecified persons, it is necessary to clarify the standard meaning of the law in its interpretation so as to ensure objective validity, and maintain consistency as much as possible with all persons as possible so as not to undermine legal stability. In addition, since positive law is established in consideration of a universal and typical matter, it is also required to interpret that the law has a concrete validity so that it can be the most reasonable solution appropriate for specific matters in applying the law in various cases that occur in society reality. In short, the goal of legal interpretation must be to find concrete feasibility within the extent that does not undermine legal stability. In addition, the legislative intent and purpose of the law should be faithfully interpreted in light of the ordinary meaning of the language used in the law. Furthermore, the systematic and logical interpretation method that takes into account the legislative intent and purpose of the law, its legislative history, harmony with the entire legal order, and relationship with other Acts and subordinate statutes should be further adopted to meet the request for legal interpretation as seen earlier (see Supreme Court Decision 2003Da8365, Apr. 26, 2009).

2) Details and purport of the relevant statutes

Article 64(1) of the Employment Insurance Act provides that an eligible recipient shall be paid early re-employment allowances if the eligible recipient re-employed at a stable occupation, as prescribed by Presidential Decree. Article 84(1) of the Enforcement Decree of the same Act provides that “The standard prescribed by Presidential Decree” under Article 64(1) of the same Act means that an eligible recipient has left at least 1/2 of the fixed benefit payment days under Article 50 of the Act as of the day immediately before the date of re-employment after the waiting period under Article 49 of the Act and is employed for at least 12 consecutive months.” As such, the purport of the Employment Insurance Act that the Employment Insurance Act pays early re-employment allowances lies in minimizing the period of unemployment and encouraging stable re-employment by paying money equivalent to a certain percentage of the unpaid part of the fixed benefit payment days to the eligible recipient prior to receiving all job-seeking benefits (see Supreme Court Decision 2009Du19892, Dec. 8, 2011).

3) Determination on the instant case

A) According to the overall purport of Gap evidence Nos. 4, 5, and 15, Gap evidence Nos. 16-1, 2, and Eul evidence Nos. 8, and the whole purport of the pleadings, the plaintiff requested a creative transport worker B to provide a creative transport worker B on or around December 28, 2014, thereby requesting a creative transport worker B to provide a creative transport worker B, thereby allowing a creative transport Co., Ltd. to submit a document for job application by January 8, 2015, taking into account that there was an in-service type, etc. at the end of each year after having interview the plaintiff on or around December 29, 2014. The plaintiff submitted the document by no later than January 7, 2015, and submitted the document to the plaintiff on January 12, 2015.

B) In full view of the following circumstances acknowledged based on the above facts and the evidence and the purport of the entire argument, the Plaintiff’s disposition of the first Defendant on a different premise constitutes “a continuous employment for 12 months or more” under Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act, and thus, is unlawful.

(1) According to the overall purport of evidence evidence No. 4 and the oral argument, the Plaintiff may recognize the fact that the Plaintiff entered into an employment contract by setting the mine transportation and the period of service from August 27, 2014 to December 31, 2014. The evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff was actually dismissed in light transport around the end of December 2014. Although the Plaintiff entered into an employment contract on a fixed-term basis as above, the Plaintiff may use a fixed-term worker without the burden of full-time conversion within a two-year period of time pursuant to the Act on the Protection, etc. of Fixed-term and Part-Time Workers, and thus, a contract may be renewed at least within a two-year period of time. Therefore, it is difficult to view that the Plaintiff is anticipated that the employment contract has not been renewed in advance before being notified of the rejection of renewal from mining transport at the end of December 2014 and other work places.

(2) On December 2014, the Plaintiff received a notice of refusal to renew from the light transport around the end of the period of time, and immediately thereafter, sent an interview for creative transport C and job placement around the time immediately before and after the retirement from the light transport. On January 12, 2015, the Plaintiff continued to serve until now after re-employment by submitting employment application documents by the deadline presented by the creative transport service. As such, it is reasonable to interpret the requirements for early re-employment allowance as “for more than 12 months” in interpreting the requirements for early re-employment allowance as a whole, even if the Plaintiff was to be re-employment from the light transport and re-employment by the day after departure from the workplace, 11 days, holidays, Saturdays, etc.

3. Conclusion

Thus, the plaintiff's claim shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted, and the judgment of the court of first instance shall be revoked, and the plaintiff's claim shall be accepted as

Judges

Mobilization by the presiding judge

Judges Kim Gin-han

Judge Lee Jae-soo

Note tin

1) The Plaintiff asserted a somewhat different date from the date on which the interview was held in the course of his pleading, but the Plaintiff submitted Gap evidence No. 16, which was submitted on the closing date of his pleading.

2 In the light of the above statements, it is deemed that the above arguments were arranged.