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인천지방법원 2015. 6. 25. 선고 2015구합121 판결
[구직급여과오급금반환처분취소][미간행]
Plaintiff

Plaintiff

Defendant

The President of the Central Local Labor Agency

Conclusion of Pleadings

May 28, 2015

Text

1. On April 1, 2014, the Defendant’s disposition of returning KRW 1,469,640 to the Plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On October 15, 2013, the Plaintiff filed an application for recognition of eligibility for employment insurance benefits with the Defendant on the ground that he/she retired from employment from employment as of September 30, 2013 from the Yusung taxi limited partnership (hereinafter “instant company”) and obtained recognition of eligibility for employment insurance benefits of KRW 180 days, daily amount of job-seeking benefits of KRW 34,992, and received job-seeking benefits of KRW 4,247,130 for 135 days from October 22, 2013 to March 5, 2014.

B. On April 3, 2014, the Defendant corrected the Plaintiff’s contractual work hours from 8 hours to 5 hours, and corrected the Plaintiff’s daily job-seeking amount from 34,992 to 21,870 won, and notified the Plaintiff of the refund of KRW 1,469,640 (hereinafter “instant disposition”).

C. On April 18, 2014, the Plaintiff dissatisfied with the instant disposition, filed a request for an examination with an employment insurance examiner, but was dismissed. On September 11, 2014, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee, but was dismissed on October 29, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2 (including the branch numbers), Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant company is operated as the taxi commission scheme that pays part of the transport earnings to the company. As such, the average wage, which serves as the basis for calculating the daily amount of job-seeking benefits, includes transport earnings exceeding the taxi commission, and the basic working hours per day are five hours in the labor contract prepared between the Plaintiff and the instant company. However, considering the Plaintiff’s form of work and the amount of taxi commission, the basic working hours indicated in the labor contract are merely the only formality. Therefore, the instant disposition is unlawful as it erroneous application of the average wage

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Article 45(1) of the Employment Insurance Act provides that the daily wage, which serves as the basis for calculating job-seeking benefits, shall be the average wage calculated in accordance with Article 2(1)6 of the Labor Standards Act (the total amount of wages paid to workers during the immediately preceding three months divided by the total number of days). Article 45(4) of the Employment Insurance Act provides that where the above daily wage is lower than the minimum daily wage (the amount obtained by multiplying the daily working hours by the minimum wage under the Minimum Wage Act), the minimum daily wage shall be the daily wage.

In addition, Article 46(1) of the Employment Insurance Act provides that when determining the daily wage based on the average wage, 50/100 of the amount shall be multiplied by 50/100, and when determining the daily wage based on the minimum daily wage, 90/100 of the amount shall be multiplied by the amount of the daily wage (hereinafter “minimum daily amount of job-seeking benefits”), and where the daily amount of job-seeking benefits based on the average wage is lower than the minimum daily amount of job-seeking benefits, the minimum daily

Meanwhile, in addition to paying a certain amount according to the actual number of working days each month to the drivers belonging thereto, if a transportation company has left the balance after deducting a certain amount of taxi commission paid to the company out of daily transportation earnings in consideration of the unique characteristics of the work form and the convenience of calculation, etc., with the individual's income, the portion that constitutes the individual's income also constitutes the wage, which is the remuneration for work, considering the nature of the portion, and thus, the excess of taxi commission shall be included in the average wage, barring special circumstances (see Supreme Court Decision 2005Da25113, Jul. 12, 2007, etc.).

2) The following facts can be acknowledged in light of the purport of Gap evidence Nos. 6, 7, 9, 10 (including those with serial numbers) and Eul evidence No. 1.

① The instant company, other than paying a certain amount according to the actual number of working days each month to its employees, was operated in the form of calculating the balance calculated by deducting a certain amount of taxi commission paid to the company out of daily transportation earnings and paying them as additional wages.

② The Plaintiff received total amount of KRW 2,766,160 for three months from March 2013 to May 2013, 2013, which was paid KRW 6,348,960 for total amount of basic wages and KRW 3,582,800 for excess taxi commission.

③ In a labor contract concluded between the Plaintiff and the instant company, the basic working hours are set at five hours a day and 150 hours a month, while two hours a day (six hours a.m., six hours a.m., and four hours a.m.) are in principle set at two hours a.m., and the meal hours and recess hours are used for hours other than basic working hours.

In addition, the Plaintiff’s taxi commission to pay to the instant company is KRW 93,00 per week and KRW 104,00 per day, while according to the report on the calculation of the cost of taxi transport by a certified public accountant according to the order of Incheon Metropolitan City, the average daily operation hours per taxi is KRW 1,370, and the average daily transport income is KRW 23,513, and the average daily transport income per taxi is KRW 233,513, and is merely KRW 10,226 per hour (=23,513, KRW 1,370/60). In addition, according to the report above, according to the above, the average daily operation hours of taxi drivers in Incheon area is about KRW 11,00, and the Plaintiff also worked approximately KRW 11,10 per day from March 2013 to May 2013.

④ The Defendant initially assessed the average wage of the Plaintiff at 33,136 won a day by 16,568 won per 50/100 of the above amount multiplied by 34,92 won (=4,860 won x 8 hours x 90%) of the minimum daily amount of job-seeking benefits, and decided that the daily amount of job-seeking benefits for the Plaintiff was less than 34,992 won, but issued the instant disposition that changed the daily amount of job-seeking benefits to 21,870 won per the minimum daily amount of job-seeking benefits by correcting the contractual work hours by 5 hours (=4,860 won x 5 hours x 90%).

3) Comprehensively taking account of the aforementioned legal principles and the aforementioned facts, the daily amount of job-seeking benefits against the Plaintiff ought to be calculated by comparing the amount equivalent to 50% of the average wage, including excess taxi commission, with the minimum daily amount of job-seeking benefits. 50% of the average wage calculated based on the total wage of 6,348,960 won from March 2013 to May 2013 (i.e., 6,348,960 won) 69,010 won (=6,348,960 won/92) is 34,505 won. 50% of the average wage and excess taxi commission that the Plaintiff received during the three preceding months prior to the severance of employment are also deemed to have no big difference with the above amount. Nevertheless, the Defendant’s calculation of the average wage based only on the wages other than excess taxi commission excess, which is 16,505 won for the Plaintiff’s basic hours of work, as seen earlier, appears to be 16,50% working hours per day.

Therefore, as the Defendant erred in calculating the average wage and contractual work hours and in calculating the daily amount of job-seeking benefits, the instant disposition should be revoked as unlawful.

3. Conclusion

Therefore, the claim of this case is reasonable, and it is so decided as per Disposition by accepting the plaintiff's claim.

[Attachment]

Judges Kang Jong-chul (Presiding Judge)

Note 1) The written complaint is written on April 2, 2014 as the date of the disposition, but it appears to be a clerical error.

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