(영문) 부산지방법원 2017.4.7. 선고 2017구합627 판결

A. On October 31, 2014, the Plaintiff filed an application for approval of eligibility for employment insurance benefits with the Defendant on November 5, 2014, on the grounds that he/she retired from employment in the Dispute Resolution Co., Ltd., and the Defendant recognized KRW 210 of the fixed benefit payment days from November 12, 2014 to May 31, 2015, and paid KRW 7,539,860 of the job-seeking benefits by recognizing KRW 210 of the fixed benefit payment days, KRW 201 of the total unemployment recognition days, KRW 35,512 of the job-seeking benefits

B. On January 14, 2015, the Defendant paid KRW 1,050,30 of the unemployment benefits (hereinafter “instant unemployment benefits”) to the Plaintiff on the grounds that the Plaintiff was not employed on two occasions on December 24, 2014 and January 2, 2015 for the period (28 days) from December 18, 2014 to January 14, 2015, which is the period subject to the recognition of unemployment.

C. After that, on January 11, 2015 and January 16, 2015, the Defendant rendered a disposition to restrict the payment and return of the unemployment benefits in the instant case to the Plaintiff on June 13, 2016 on the ground that the Plaintiff was unable to file an application for the unemployment recognition via the Internet on January 14, 2015, the unemployment recognition date, and that the Plaintiff’s family member (son) filed an application for the unemployment recognition as a proxy and received the instant unemployment benefits unlawfully.

D. On July 13, 2016, the Plaintiff filed a petition for review with an employment insurance examiner on July 13, 2016, but the said petition for review was dismissed on September 23, 2016. On October 5, 2016, the Employment Insurance Review Committee filed a petition for review on October 5, 2016, but the said petition for review was dismissed on November 9, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, Eul evidence 1 through 7 (each number is included; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As the Plaintiff did not know that not only actually engaged in job-seeking activities during the period subject to unemployment recognition but also his family members, etc. were to apply for unemployment recognition on behalf of the Plaintiff, there was no perception that the instant unemployment benefits were unlawfully received.

2) A beneficiary who has filed an application for unemployment recognition while staying in Korea and filed an application for unemployment recognition is against the principle of equality to return the unemployment benefits only to the beneficiary who has filed an application for unemployment recognition as an agent during stay in Korea without returning the unemployment benefits.

3) It is unreasonable to require the Defendant to return the instant unemployment benefits even though the Defendant impliedly applied for the practice of an agent, not the principal, when filing an application for unemployment recognition via the Internet.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i)requirements for the recognition of unemployment and for receiving unemployment benefits;

A) Comprehensively taking account of the provisions of Article 40(1)2 and 40(1)4, and Article 44(2) and (3) of the Employment Insurance Act, it is reasonable to interpret that the insured, who has left his job to receive unemployment benefits (job-seeking benefits), is in a state of being unable to find a job despite being able and able to receive a “work” and actively endeavor to re-employment” (A) and the date designated by the head of the Employment Security Office (hereinafter referred to as “date of unemployment recognition”) have been present at the Employment Security Office for reemployment and has reported that the insured has been able to obtain a “work” and has

B) In particular, Article 44(2) of the Employment Insurance Act provides that an eligible recipient who intends to obtain the recognition of unemployment shall appear at the unemployment recognition date and apply for job-seeking benefits: Provided, That where an eligible recipient is unable to appear at the unemployment recognition date due to reasons prescribed in Article 65(1) through (5) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016; hereinafter the same shall apply), an application for the alteration of the unemployment recognition date shall be made; where an applicant is unable to appear at the unemployment recognition date due to illness or injury (Article 44(3)1 of the Employment Insurance Act); where an interview, etc. with a job offerer under the placement of employment security office (Article 44(3)2 of the Employment Insurance Act; Article 44(3)3 of the Employment Insurance Act; Article 44(3)3 of the Enforcement Rule of the Employment Insurance Act (Article 44(3)4 of the Employment Insurance Act); or where the head of the Employment Insurance Act directly resides and other reasons for unemployment recognition (excluding those who directly present at the Internet or bridge).

C) In principle, in order to obtain the recognition of unemployment, the purport of recognizing the exception of direct attendance only in cases where inevitable grounds arise or special exceptions to the recognition of unemployment exist is to resolve economic and social difficulties caused by unemployment through the payment of necessary benefits in the event of a worker’s unemployment, as well as to prevent unfair payment of unemployment benefits due to moral hazard by directly confirming the contents of job-seeking activities and the intent and ability of his/her efforts to re-employment, and to reflect these purport, it is reasonable to deem that the eligible recipient is unable to work on a normal basis on mental and physical condition.

Article 87(2) of the Enforcement Rule of the Employment Insurance Act provides that "no unemployment shall be recognized by deeming that a person has an intention and ability to work and has not actively engaged in reemployment activities" (Article 87(2) of the Enforcement Rule of the Employment Insurance Act), and Article 5 of the former Regulations on the Recognition of Unemployment and the Assistance to Re-employment (amended by the Ministry of Employment and Labor Rule No. 119, Jan. 9, 2017; hereinafter the same shall apply) provides that "whether a person eligible to receive benefits and an application for job seeking has been filed in the course of performing the duties of unemployment recognition," "whether a person eligible to receive benefits has been present in the unemployment recognition designated by him/her (Article 5)," and "whether a person eligible to receive benefits has been engaged in active reemployment activities (Article 9(1) and (2) of the former Regulations on the Recognition

The verification of whether an applicant has been present at the fixed unemployment recognition date shall be made, and the verification of unemployment shall not be recognized for all of the periods subject to the verification of unemployment unless the beneficiary fails to appear or fails to appear within the designated unemployment recognition date.

D) Furthermore, even if a special person for the recognition of unemployment is a person recognized by the head of an employment security office to be able to report directly reemployment activities and income generated through the Internet (Article 65 subparagraph 9 of the Enforcement Decree of the Employment Insurance Act), Article 89(6) of the Enforcement Rule of the Employment Insurance Act provides that "direct reemployment activities and income generated through an information and communication network using an authorized certificate on the date designated by the head of the employment security office shall be reported faithfully through an information and communication network pursuant to Article 89(6) of the Enforcement Rule of the Employment Insurance Act, and Article 9(4) of the former Act provides that, if an eligible recipient stays abroad for personal reasons (excluding overseas employment purposes), 'direct reemployment activities and income generated in the unemployment recognition date' 'direct reemployment activities and income generated in the unemployment recognition date' does not recognize the unemployment of the whole period subject to the recognition of unemployment recognition. In light of the contents and purport of the above provisions, as long as an exception is recognized in the application method of "direct attendance through the Internet" and at least if the applicant does not directly receive unemployment benefits from the unemployment recognition date.

2) Whether the Plaintiff is qualified to receive unemployment benefits

In light of the purport of the aforementioned relevant provisions, comprehensively taking account of the overall purport of the arguments as to this case’s health class, Gap evidence Nos. 1, 2, and 2, 3, 4, and 5, the unemployment recognition date for the period subject to the unemployment recognition from December 18, 2014 to January 14, 2015 was the date of January 14, 2015. Nevertheless, the plaintiff was not staying in the Republic of Korea for overseas travel from January 11, 2015 to January 16, 2015, including the unemployment recognition date, and the plaintiff was unable to file an application for the unemployment recognition through the Internet due to the above stay in Korea. In light of this, it is recognized that the plaintiff received an application through the plaintiff’s family (which was the plaintiff’s family member) for the alteration of the unemployment recognition or without any inevitable reason, it is reasonable to deem that the plaintiff did not file an application for the unemployment recognition or directly report on the income generated from unemployment benefits or other unemployment benefits (Article 62).

I think that it falls under e.g.

D. Sub-committee

Therefore, the instant disposition is legitimate on the ground that the Plaintiff received the instant unemployment benefits by causing another person to file an application for unemployment recognition even though the Plaintiff was in stay abroad, by fraud or other improper means.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.