(영문) 부산지방법원 2020.1.30. 선고 2019구합454 판결

A. From September 2018, the Plaintiff served as a part-time lecturer at B University from around September 2018, and retired from office on December 25, 2018.

B. On December 31, 2018, the Plaintiff filed an application for recognition of eligibility for unemployment benefits with the Defendant. The Defendant confirmed that the Plaintiff was registered as an intra-corporate director of a profit-making corporation C Co., Ltd. (hereinafter referred to as “instant company”) and provided guidance to the Plaintiff on the retirement of the above registered director.

D. On January 14, 2019, the Plaintiff asserted that the Plaintiff did not retire from the registered director of the instant company, but did not contact with the business owner, and submitted a certificate of resignation on January 4, 2019 to the Defendant.

E. From January 18, 2019 to January 31, 2019, the Defendant: (a) examined whether the Plaintiff’s eligibility for unemployment benefits was appropriate for the instant company, D, E, F, and G; and (b) on February 11, 2019, based on the Plaintiff’s actual operation of the instant company, the Defendant rendered a disposition of non-recognition of eligibility for unemployment benefits on the ground of “business operation for profit-making purposes” against the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 to 12 evidence (including evidence with serial numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is a shareholder and promoters of the instant company, and only engaged in the business of the instant company to assist the representative director, and did not actually operate the said company. Therefore, the instant disposition is unlawful, and thus, it should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) According to Article 40(1)2 of the Employment Insurance Act, job-seeking benefits shall be paid to an insured worker who has retired from employment, despite his/her intent and ability to work, if he/she satisfies all the requirements such as employment (including where he/she engages in a profit-making business). According to Article 43(1) of the Employment Insurance Act, a person who intends to receive job-seeking benefits must apply to the head of an employment security office for recognition of

2) According to the purport of Gap evidence 6, 7, 8, Eul evidence 2 through 16, witness D's testimony, witness G's witness G's partial testimony and pleading, the following facts can be acknowledged.

A) D was between the Plaintiff and the private sector in H lifelong education center and the Plaintiff. On March 31, 2018, upon the Plaintiff’s recommendation, D was appointed as the representative director of the instant company.

B) D see personal affairs, such as preparation of a licensed real estate agent’s examination, at the faculty research room or resting room within B University provided by the Plaintiff, or conducted an interim examination supervisor of the said university. As the Plaintiff did, D performed business related to the instant company, such as lending, pre-specing, attaching, delivering receipts, and receiving postal items.

C) Around May 2018, D expressed the Plaintiff’s intention to resign from the representative director, but D did not resign from the representative director until the Plaintiff’s successor was appointed.

D) D visited, only if the Plaintiff received an order from the Plaintiff to receive postal items, the building in Busan-gu and Jho-ho, the place of business of the instant company.

E) On December 18, 2018, the e-mail sent by the Plaintiff to K with a copy of the corporate passbook attached to it refers to himself as the president of the instant company, and the order used by the Plaintiff is written as the president of the instant company.

F) Meanwhile, M, an employee belonging to L limited liability company located in the same place as the business place of the instant company, periodically reported to the Plaintiff as to daily business affairs including the business affairs of the instant company.

3) We examine the following circumstances acknowledged by the facts of recognition and the purport of the entire pleadings as seen earlier, namely, ① the representative director D of the company of this case was directed by the Plaintiff in relation to the business of the company of this case, ② the Plaintiff was in fact determined, ② D did not have received business transfer records from E, the former representative director of the company of this case, and there was no fact that D had received business transfer records from the former representative director of the company of this case, ③ the Plaintiff managed the corporate account and card of this case, ③ the Plaintiff managed the corporate account and card of this case, and kept the corporate documents in the above vehicle, ④ the representative director or employee of the company of this case was called as “the representative director or employee of the company of this case” or “the representative director of the company of this case,” ④ the Plaintiff was called as the chairman of the company of this case, ④ the Plaintiff was named as the Plaintiff, and ⑤ the Plaintiff did not have the ability to receive unemployment benefits for profit-making purposes despite the Plaintiff’s actual ability to do so.

4) Therefore, the Plaintiff’s assertion on this cannot be accepted.

3. Conclusion

Therefore, the instant disposition is lawful, and thus, the Plaintiff’s claim is dismissed as it is without merit. It is so decided as per Disposition.