(영문) 서울고등법원 2017.3.23. 선고 2016누959 판결

The defendant's disposition of the site pay in the attached Form No. 1 against the plaintiff on November 30, 2009 and the disposition of restricting payment in the attached Table No. 3 is revoked.

2. Of the total litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Purport of claim and appeal

The judgment of the court of first instance shall be revoked. Each disposition made by the defendant against the plaintiff on November 30, 2009 and the plaintiff on the attached list of disposition shall be revoked.

Reasons

1. Scope of the judgment of this court;

A. The plaintiff filed a lawsuit seeking revocation of each disposition listed in the "Attachment 30, 2009, which the defendant filed against the plaintiff. However, the first instance court rendered a judgment dismissing the plaintiff's claim. The plaintiff appealed against the judgment of the first instance, but the court prior to the remanded the plaintiff's appeal. The judgment of remanded the plaintiff's appeal. The judgment of the court prior to the remand reversed and remanded the part of the judgment of the court prior to the remand on November 30, 2009 (which refers to each disposition listed in paragraphs 1 and 3 of the "Attachment 2" and "the restriction on the payment of the site price"; hereinafter referred to as "the land price classification" and "the restriction on the payment of the plaintiff's remaining appeal."

B. Therefore, in the first instance trial and the second instance trial prior to remand, the part concerning the order of return and the decision of additional collection as stated in Paragraph (2) of the [Attachment List] among the Plaintiff’s claims (hereinafter “instant order of return, etc.”) shall be determined to be lost by the judgment of the Supreme Court on partial destruction and transmission, and the subject of the judgment by the court shall be limited to the disposition of land pay and restriction on payment, which is the part destroyed and remanded

2. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, since it is identical to the corresponding part of the judgment of the court of first instance (section 5 to 4 of the judgment of the court of first instance).

3. Whether the disposition of the land payment and the disposition of the restriction on payment are legitimate

A. Plaintiff’s assertion (related to decision of unconstitutionality)

Since the Constitutional Court decided that the corresponding part of Article 35 (1) of the former Employment Insurance Act (amended by Act No. 9315 of Dec. 31, 2008, and amended by Act No. 1039 of Jun. 4, 2010; hereinafter referred to as the "former Employment Insurance Act") which served as the basis for the disposition of the land price increase and the disposition of the restriction on payment is unconstitutional, the disposition of the land price increase and the disposition of the restriction on payment should be revoked.

B. Determination

1) Article 35(1) of the former Employment Insurance Act provides, “The Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means to restrict such support or to return the amount of support received by fraud or other improper means, as prescribed by Presidential Decree (hereinafter “instant legal provision”).” (hereinafter “instant legal provision”).

On March 31, 2016, the Constitutional Court decided that the provision of this case 2014Hun-Ga2, 2015Hun-Ga24 decided on March 31, 2016 is unconstitutional on the ground that the provision of this case 'the provision of this case 's legal provision '(hereinafter referred to as 'the provision on restriction on support' violates the principle of prohibition of comprehensive delegation of Article 75

2) According to the facts as to the circumstances of the above dispositions, on November 30, 2009, on the ground that the Defendant received or attempted to receive the employment maintenance support payment for the Plaintiff by fraud or other improper means, he/she applied the restriction on support under the legal provisions of this case and applied the restriction on the site pay and the restriction on payment.

On the other hand, the lawsuit of this case seeking revocation of the land level disposition and the restriction on payment restriction disposition, etc., had been pending before the Constitutional Court's decision of unconstitutionality on the legal provisions of this case as the premise of the trial, and thus, the Constitutional Court's decision of unconstitutionality on the part of the legal provisions of this case as to the restriction on

Therefore, the disposition of the site pay and the disposition of restricting payment based on the provision that loses its effect due to the Constitutional Court’s decision of unconstitutionality should be revoked as it is unlawful.

4. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the land price increase disposition and the restriction on payment restriction disposition of this case shall be accepted with merit, and since the part concerning the land price increase disposition and the restriction on payment restriction disposition of this case in the judgment of the court of first instance are unfair with different conclusions, it shall be accepted by the plaintiff's appeal, and the above disposition shall be revoked, and it shall