2016 old-gu 100647 Revocation of Disposition of Collecting Unjust Enrichment

1. The number of stock companies;

2. The signal summary of the stock company;

The Director General of the Daejeon Regional Employment and Labor Office

June 15, 2017

July 13, 2017

1. Determination on collection of unjust enrichment of KRW 28,462,540 on March 24, 2016 for extension of employment of the elderly (long of retirement age) by the Defendant against the Plaintiff Green Co., Ltd., and revocation of determination on unjust enrichment of KRW 6,725,80 on April 20, 2016 for extension of employment of the elderly (long of retirement age) by the Plaintiff Signals Co., Ltd., Ltd.

2. The remaining claims of Plaintiff Signals Co., Ltd. are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff Green Cross Co., Ltd. and the Defendant is borne by the Defendant, and 1/2 of the part arising between the Plaintiff Signals Co., Ltd. and the Defendant is borne by the Defendant, and the remainder is borne by the Defendant, respectively.

The disposition of refusal of payment of KRW 900,000 for extension of employment of the elderly (long of retirement age) against the Plaintiff Signals Co., Ltd. on March 23, 2016 is revoked.

1. Details of the disposition;

A. Amendment of the rules of employment of the plaintiffs

1) The Plaintiff Greenwater Co., Ltd. is a corporation with the purpose of manufacturing and selling architectural decoration materials and manufacturing and selling the Plaintiff Signals Co., Ltd. (hereinafter “Plaintiff Signals”).

2) The rules of employment established around July 2008 by Plaintiff Green Number Co., Ltd. and around July 2007 by Plaintiff Signals Co., Ltd. prescribed that “the retirement age of members shall be at the time when the age of 55 expires, and any person deemed necessary by the company may be reappointed for a fixed period of time, such as a commission, for a temporary position.”

3) Around July 2013, Plaintiff Green Co., Ltd. amended the rules of employment around October 2013, which was the Plaintiff’s signaler. The revised rules of employment stipulate that “the retirement age of the employee shall be the last day of the month in which the employee’s age reaches 58 years of age, but may be re-employed upon commission as required by the company.”

(b) Details of decision on collection of unjust enrichment;

1) The Plaintiff Green income Co., Ltd. filed an application with the Defendant for subsidies for promotion of employment of the aged on the ground that the retirement age of the workplace was changed from the age of 55 to the age of 58. The Defendant paid the Defendant Green Income Co., Ltd. the subsidies for totaling KRW 28,462,540 (excluding the money partially recovered) by setting the period from May 7, 2014 to September 30, 2015 to the 13 workers eligible for subsidies.

2) The Defendant filed an application for subsidies for promotion of employment of the aged on the ground that the Plaintiff signaler changed the retirement age of the workplace, and the Defendant set the period from January 7, 2014 to September 30, 2015 the subsidies of KRW 6,725,80 in total to the Plaintiff signaler list.

3) On March 10, 2016, the Defendant issued a public notice stating that “The previous rules of employment submitted by the Plaintiff to the Plaintiff shall be at the time when the age limit of 55 expires,” which read that “the former rules of employment submitted by the said Plaintiff shall be at the time when the age limit of 55 expires.” However, three members, including B, etc. sent a public notice stating that the Defendant was notified of the decision to recover the subsidy paid KRW 6,725,800, as it does not meet the requirements for the payment of the subsidy to those who have reached the age of 55 but have yet to expire.”

4) On March 22, 2016, the Defendant sent a public notice stating that “The 13 persons, including A, who reached the age of 55 even after having reached the age of 55, and did not meet the requirements for the payment of subsidies to the 13 persons, including A, were erroneously paid subsidies, and thus, the Defendant notified the collection of KRW 28,462,540 of the subsidies paid to the 13 persons, as the subsidies were erroneously paid.”

5) On March 24, 2016, the Defendant issued a payment notice on KRW 28,462,540 of the subsidies to be recovered to Plaintiff Green Cross Co., Ltd., and on April 20, 2016, the payment notice on KRW 6,725,80 of the subsidies to be recovered to Plaintiff Signals Co., Ltd. (hereinafter “instant unjust enrichment collection decision”) respectively (hereinafter “instant payment notice”), and on the payment notice, the payment notice states that “the payment notice is the time for the payment to be made to the bank, etc., which is the receiving agency of the National Treasury, due to the payment notice, and the payment notice is the time for the payment to the bank, etc., which is the receiving agency of the National Treasury. If the payment is not made by the payment deadline, the payment notice calls for the payment notice to the effect that the procedure for the collection of delinquent property, such as seizure, is proceeding.”

C. Grounds for rejection of payment

1) On the ground that Plaintiff Signals changed the retirement age from the age of 55 to 58 in the Defendant’s place of business, Plaintiff Signals filed an application for subsidies for promotion of employment of the elderly in the quarter of April 2015 with respect to B, who is an employee eligible for support.

2) On March 23, 2016, the Defendant notified Plaintiff Signals that “The previous rules of employment submitted by the Plaintiff at the time when 55 years of age expire,” the Defendant notified that “A person who reached the age of 55 but fails to meet the requirements for the payment of subsidies, and thus is not entitled to the payment of subsidies” (hereinafter “instant refusal disposition”).

(d) Relevant statutes;

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

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 13, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination on the part of seeking revocation of decision on collection of unjust enrichment

A. Determination on the defense prior to the merits

The defendant asserts that "the notification of return of unjust enrichment for extension of employment of aged persons" against the plaintiffs is not a recovery of unjust enrichment under employment insurance law, but a claim for restitution of unjust enrichment under the Civil Act, and the notification of payment also requires the return of unjust enrichment paid without any legal ground, and it does not constitute an administrative disposition since it does not impose a direct obligation on the plaintiffs.

In light of the following circumstances and the purport of the entire argument as a whole, namely, the defendant demanded the payment of the amount of the notice by the designated date in the notice for payment, and the statement that the collection of delinquent taxes can be conducted in accordance with the example of disposition on default of national taxes in the event that the amount of the notice is not paid by the payment deadline, although there was no special act that the defendant does not constitute the cancellation of the payment disposition after the payment disposition on unjust enrichment of this case was made until the decision on collection of the unjust enrichment of this case was made, in order to demand the return as long as the subsidy was paid by the payment disposition, it is necessary to cancel the payment disposition on the premise that the decision on collection of this case is not limited to the notification by a simple doctor, but it is reasonable to view that the decision on collection of unjust enrichment of this case is combined with the disposition on the return of the subsidy and the subsequent disposition on the return order (see Busan High Court Decision 2009Du6001, Apr. 16, 2010).

B. Whether a decision on collection of unjust enrichment is lawful

Articles 23(1) and 24(1) of the Administrative Procedures Act provide that when an administrative agency takes a disposition, it shall, in principle, present in writing the basis and reasons for the disposition in the case of disposal in accordance with the contents of the application, except for simple and repetitive dispositions, urgent cases, etc. In order to ensure that an administrative agency takes a reasonable disposition and provides legitimate grounds for its justification by making a careful examination and judgment. As such, it is intended to ensure that the other party to the disposition is informed of the grounds for the disposition and provide legitimate grounds for the disposition. Furthermore, it is intended to protect the trust of the interested party and guarantee procedural rights by limiting the scope of deliberation in judicial review. Thus, in a case where an administrative agency violates the duty to present reasons,

However, the defendant did not present the legal basis for the disposition to the plaintiffs while the decision on the collection of unjust enrichment of this case does not constitute an exception to the presentation of reasons for the disposition stipulated in the subparagraphs of Article 23(1) of the Administrative Procedures Act. Thus, the decision on the collection of unjust enrichment of this case is unlawful as a disposition lacking the basis and reason.

3. Determination as to the revocation of the disposition of refusal of payment

A. The plaintiffs' assertion

Before revising the rules of employment, the plaintiffs company has operated the retirement age of the workers as 55 years old, but the defendant's retirement age at the time of 56 years old, and erroneously interpreted the rules of employment before the revision to apply the rules of employment at the time of 56 years old, and thus the rejection disposition of this case should be revoked.

B. Determination on the legitimacy of the refusal disposition of payment

In full view of the following circumstances acknowledged by comprehensively taking account of the overall purport of arguments as to Gap evidence Nos. 3, 4, 24, and 26, Eul evidence Nos. 7 and 8, it is reasonable to deem the retirement age under the former Rules of Employment before the revision of the plaintiffs' company as "when the age of 55 expires, i.e., the date when the age of 56 reaches the age of 56". Thus, since workers B did not reach the age of 55, the disposition of this case is legitimate.

1) The rules of employment before the amendment of the Plaintiffs Company stipulate that “the retirement age of the employees shall expire at the expiration of 55 years of age” with respect to the retirement age, and the prior meaning of the word “the expiration of the age” is that the time limit expires.

2) After the amendment of the Plaintiffs Company, the rules of employment stipulate that “The retirement age of workers shall be the last day of the month in which they reach the age of 58” with respect to the retirement age, and include any expressions different from the word “the expiration of the rules of employment before the amendment.”

3) The Plaintiffs Company maintained the labor contract relationship with the relevant employee by November 30 of the year in which the employee’s retirement age reaches 55 years of age, and, if deemed necessary, extended the labor contract relationship with the relevant employee by the method of preparing a one-year employment contract form with the relevant employee on December 1 of that year, and it can be seen that such practice of labor contract has been maintained as “when the Plaintiffs company reaches 55 years of age”. However, even according to the Plaintiffs’ assertion, it is difficult to view that the Plaintiffs Company did not terminate the labor contract relationship with the employee when the employee reaches 55 years of age, solely on the grounds that they asserted by the Plaintiffs, it is difficult to view that the Plaintiffs Company applied “when the employee reaches 55 years of age before revising the employment rules” as retirement age, some of the employees whose labor contract relations were extended, who were 55 years of age prior to the revision of the employment rules, settled interim retirement pay in 2015 even though they reached 2012.

4. Conclusion

Therefore, the plaintiff corporation's claim for green income is justified, and the plaintiff corporation's claim for green income is justified within the above scope of recognition, and thus, it is accepted, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges' Senior Film Screening

A person shall be appointed.