2012Nu12404 Revocation of restriction on the payment of new employment promotion subsidy, etc.

A Stock Company

The President of the Central Local Labor Agency

Incheon District Court Decision 2011Guhap3092 Decided April 12, 2012

October 4, 2013

October 25, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On June 16, 2010, the Defendant’s disposition of restricting the payment and withdrawing the subsidy for new employment promotion rendered to the Plaintiff shall be revoked.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked. The plaintiff's claim against the above revocation shall be dismissed.

3. Scope of the judgment of this court.

The plaintiff sought a judgment identical to the above purport of the claim, but the court of first instance revoked the part exceeding 5,400,000 won out of the order of return of new employment promotion subsidy and professional manpower utilization subsidy granted by the defendant against the plaintiff on June 16, 2010, and dismissed the remainder of the plaintiff's claim. In other words, the court of first instance dismissed the part of cancellation as to ① return order of new employment promotion subsidy of KRW 5,400,000 (hereinafter referred to as "the subsidy of this case") and ② additional collection order of KRW 5,40,000 corresponding to the subsidy of this case, and ③ cancellation order of restriction period of payment (from July 24, 2007, one year after the expiration date of the supply and demand of the subsidy of this case, until May 1, 2009, which is one year after the expiration date of the supply and demand of new employment promotion subsidy of this case, ② return order of the total professional manpower utilization subsidy of small and medium enterprises, and ② this part was excluded from this appeal.

1. Details of the disposition;

A. The Plaintiff is a company with the objective of developing Internet contents and providing information.

B. On June 1, 2007, the Plaintiff applied for the payment of the new employment promotion subsidy to the Defendant on the ground that he had newly employed B who was unemployed for a period of less than 29 years of age and more than 3 months of age, and the Defendant paid a total of 5,400,000 won of the new employment promotion subsidy to the Plaintiff from July 24, 2007 to May 2, 2008.

C. In addition, during the period from July 24, 2007 to May 1, 2009, the Plaintiff was paid KRW 32,681,480 as a total of KRW 15,879,90 as a subsidy for the promotion of new employment, and KRW 16,80 as a subsidy for the utilization of specialized human resources for small and medium enterprises.

D. On June 16, 2010, the Defendant issued 35(1) of the former Employment Insurance Act (amended by Act No. 8429 of May 11, 2007), Article 35(2) of the same Act (amended by Act No. 9315 of Jan. 12, 2008; hereinafter the same) to the Plaintiff on the ground that “the Plaintiff, while employing the Plaintiff around February 16, 2007, knew that it does not meet the requirements for receiving new employment promotion grants, requested the Plaintiff to register job seeking, reported the acquisition of employment insurance after the unemployment period and the unemployment period, and received new employment promotion grants by falsely stating the employment date in the relevant documents, such as the application for the incentives and the ledger of benefits, etc., and issued the Plaintiff a refund of the total amount of KRW 35(2) of the same Act (amended by Presidential Decree No. 21015 of Sep. 18, 2008; hereinafter the same) to the Plaintiff during the period of 2000,5008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 9, 10, 13, and 16, and the purport of the whole pleadings

2. Whether the disposition is lawful;

The Constitutional Court rendered a decision of unconstitutionality as to Article 35(1) of the former Employment Insurance Act, which served as the basis for issuing an order to return a total of 32,681,480 won of the incentives to utilize small enterprises, among those granted to the Plaintiff during the period of restriction on payment, on August 29, 2013. The effect of the decision of unconstitutionality of the Constitutional Court is not only the so-called "relevant case," which is the basis for the decision of unconstitutionality, or the so-called "the so-called "finite case where there was a request for the same kind of unconstitutionality" which is the basis for the decision of unconstitutionality of the Constitutional Court, but also the "the so-called "finite case where the law or legal provisions were not the basis for the decision of unconstitutionality, but also the so-called "finite case where the court is pending at the time when the decision of unconstitutionality is made (see, e.g., Supreme Court Decision 9Da17180, Oct. 9,

Therefore, an order to return KRW 32,681,480, total of the above new employment promotion incentives and incentives to utilize specialized human resources of small and medium enterprises, becomes a disposition that was conducted without any legal basis, and is unlawful without any need to further examine.

3. Conclusion

Therefore, the part exceeding KRW 5,400,00 among the order of return of new employment promotion grants and the order of return of professional human resources utilization grants to the plaintiff on June 16, 2010 shall be revoked. The judgment of the court of first instance is justified as it is in conclusion, and the defendant's appeal shall be dismissed and it is so decided as per Disposition.

The presiding judge, judge and assistant administrator;

Judges Nown Korea

Judge Lee Ro-man