(영문) 서울행정법원 2016.12.23. 선고 2016구합71287 판결

B. Around January 29, 2015, the Plaintiff submitted to the Defendant an application for subsidies for employment of elderly people aged 60 years or older (hereinafter referred to as “subsidies for employment of elderly people”) who fall under the three quarters and four quarters of 2014. The Plaintiff submitted the said application accompanied by a list of employees aged 60 years or older among continuous employees for at least one year in the three quarters and four quarters of 2014, and the date of entry in each of the above lists included A, stating that the date of withdrawal was October 10, 2014.

D. After examining the Plaintiff’s application on February 13, 2015, the Defendant determined to pay the Plaintiff the sum of KRW 6,647,400 (hereinafter “instant subsidy”) for the employment of the elderly in the third quarter and the fourth quarter of 2014 based on the following calculation, and paid the Plaintiff the said amount on February 16, 2015.

A person shall be appointed.

E. On November 17, 2015, the Defendant was scheduled to make a return decision on the instant subsidy on the ground that “the Plaintiff was confirmed to have withdrawn from the Plaintiff through an adjustment in employment within the period of reduction prevention (three months before filing an application, six months after filing an application) with respect to the instant subsidy,” and notified the Plaintiff that the period for submitting its opinion on the said disposition was until December 2, 2015, and the Plaintiff submitted a written opinion to the Defendant on November 30, 2015.

F. On December 17, 2015, the Defendant decided to return the full amount of the instant subsidy to the Plaintiff (hereinafter “instant disposition”).

【Ground of recognition】 The fact that there is no dispute, Gap's 1, 2, 3, 5, 6, and 7 (including Serial Nos. 1, 1, 2, 3, 5, 6, and 7); the purport

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

1) A, who manages and supervises cleaning workers at B hospital, intends to have their work only on the ground that “if the Plaintiff continues to work at the hospital with poor health, it is likely to have been infected by another hospital,” etc. on several occasions, the Plaintiff accepted A’s appeal and recommend A to resign inevitably, and A submitted to the Plaintiff a written resignation to resign as of October 10, 2014, and retired from office. The retirement of A does not fall under “a resignation from employment by the adjustment of employment under Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act, which sets forth the ground for payment of the site for the elderly employment subsidy,” and thus, the instant disposition based thereon is unlawful.

2) As to the principle of trust protection

In applying for the payment of the employment subsidy for the aged to the defendant, the plaintiff explained about the plaintiff's retirement to C, and the defendant decided to pay the plaintiff's application in this case more than the amount stated in the plaintiff's application after undergoing a substantial and strict examination process. The plaintiff trusted the defendant's public opinion name and received the subsidy in this case. Since the defendant infringed the plaintiff's interest by making the disposition in this case against the above statement of opinion, the disposition in this case goes against the principle of trust protection.

3) As to the restriction on cancellation of the beneficial administrative disposition, the instant disposition constitutes cancellation of the beneficial administrative disposition. In light of the fact that the Defendant determined that the Plaintiff’s retirement did not constitute “the case where the Plaintiff left his job by adjustment of employment” after the process of substantive examination, and that the Defendant paid the instant subsidy, which is the amount higher than the amount stated in the Plaintiff’s application, there is no need for public interest to justify the Plaintiff’s infringement of the Plaintiff’s vested rights arising from the return of the instant subsidy. Therefore, the Defendant did not revoke the decision on the payment of the instant subsidy

4) As to the scope of return

A) The amount of subsidies for employment of the aged shall be calculated by multiplying the amount publicly notified by the Minister of Employment and Labor by the number of workers aged 60 or older (hereinafter referred to as "number of the aged employed in excess") who are employed in excess of the ratio determined and publicly notified by the Minister of Employment and Labor for each type of business, but it shall not exceed the amount calculated by multiplying the amount publicly notified by the Minister of Employment and Labor by the number equivalent to 20/100 of the number of workers engaged in the relevant business (Article 25-2(3) of the Employment Insurance Act). If the ratio of the number of the aged employed in excess exceeds 20/100 of the number of workers engaged in the relevant business, the principal of the elderly employment is not paid for the aged in excess of the total number of workers (Article 25-2(3) of the Employment Insurance Act). In the case of the Plaintiff, due to the foregoing limitation on the total amount of subsidies, the amount

B) Since the elderly employment subsidy was introduced for the maintenance of employment of the aged aged 60 years or older who are vulnerable to employment, even if the Plaintiff left employment through employment adjustment during the period for preventing the reduction of the amount of aged 60 years or older, it can be deemed that the effect of maintaining employment of the aged aged 60 years or older was achieved with respect to the remaining aged aged 60 years or older.

C) In light of the above facts, if there are the aged aged 60 years or older as in the instant case, the scope of return should be determined by taking into account the specific circumstances into account, and the revocation and return of the decision to pay the employment subsidy for the aged should be made within the extent that does not actually contribute to the maintenance of employment. The instant disposition is unlawful as ordering the return of the entire amount of the instant subsidy.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Whether A's retirement constitutes "the case of severance from employment through employment adjustment"

1) Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act provides that “Where an employer has retired from employment by means of employment adjustment for at least 5 years of age from employment to six months after filing an application for subsidies for employment of the aged from three months before applying for such subsidies, the aged employment subsidy shall not be paid.”

The purpose of the employment subsidy system for the aged is to facilitate and maintain the employment of the aged who are difficult to find employment despite the intention of employment, and the aged employment subsidy is paid upon application if they meet certain conditions such as the maintenance of employment for the aged at least 60 years old by type of business under the above Enforcement Decree, and if they fail to meet such conditions, it is to prevent the actual employment of the aged who are the vulnerable class in employment by excluding them from being eligible for the payment. In light of the balance between the dismissal due to serious reasons under Article 58 of the Employment Insurance Act and the fact that Article 58 of the Employment Insurance Act provides that job-seeking benefits are not eligible for job-seeking benefits for the insured who have been dismissed or left their employment due to their own reason, the term "in case of leaving employment by adjustment of employment" means the case where the employment contract is terminated by the employer's situation, such as the need for management without any cause or voluntary intention, which means the unilateral expression of intent of the employer who terminates the employment contract against the

2) Comprehensively taking account of the overall purport of the arguments in the statement No. 4, and No. 1, as to whether the retirement of A constitutes "the case of departure from employment through the adjustment of employment", the plaintiff submitted to the plaintiff on October 10, 2014 a letter of resignation to the effect that "A intends to resign on October 10, 2014 due to the reasons for the company's recommendation or resignation (e.g., concerns over the occurrence of industrial accidents caused by diseases)," and the plaintiff's voluntary resignation from employment without the plaintiff's recommendation to resign from employment as the reasons for loss when reporting the loss of insured status A to the defendant, and the detailed reasons for loss of company's voluntary resignation from employment. Accordingly, A appears to have submitted a letter of resignation upon the plaintiff's recommendation to resign. Accordingly, A appears to have been unable to continue to work or voluntarily expressed prior to the plaintiff's recommendation to resign from employment without the plaintiff's recommendation to resign from employment.

3) Therefore, the Plaintiff’s assertion on this part is without merit.

D. Whether the principle of protection of trust is violated

1) In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's statement of opinion that is justifiable and trusted shall not be attributable to the individual; third, the individual should have trusted and trusted the opinion statement; third, the administrative agency should have conducted any act against the above opinion statement; fourth, the administrative agency's disposition contrary to the above opinion statement should cause an infringement on the individual's interest in trust. If any administrative disposition satisfies these requirements, it is unlawful that it goes against the principle of the protection of trust unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2006Du10931, Jan. 17, 2008).

2) On the other hand, the principle of protection of trust may apply to cases where a disposition contrary to the public opinion list of the preceding administrative agency, which is a public opinion list, is brought about as a result of infringing an individual's interest by trusting the above opinion list and doing any act on the basis thereof. The instant disposition aims to ex officio revoke the instant decision on the payment of subsidy on the ground of defects in the requirements originally existed in the decision on the payment of subsidy and deprive the Plaintiff of the benefits granted by the decision on the payment of subsidy in this case on the ground that it does not deprive the Plaintiff of the benefits newly created by the Plaintiff based on the decision on the payment of

3) Therefore, the Plaintiff’s assertion on this part is rejected.

E. Whether revocation of a beneficial administrative disposition is limited

1) Where there is a defect in an administrative act, a disposition agency that has conducted an administrative act may revoke it on its own, even without a separate legal basis. However, when cancelling a beneficial administrative disposition, it may revoke it only where it is strong enough to justify the disadvantage that a party in the public interest needs to suffer due to the need of the public interest to revoke it, such as the protection of trust and infringement of the stability of legal life, etc. after comparing and comparing the disadvantages suffered by the party concerned (see, e.g., Supreme Court Decision 2013Du1611, Nov. 27, 2014).

2) In full view of the following circumstances that can be seen by comprehensively taking into account the purport of the entire arguments as to the instant case, since the public interest need to cancel the decision to pay the instant subsidy is strong enough to justify disadvantages, such as the Plaintiff’s right to obtain benefits, protection of trust, and infringement of the stability of legal life, the revocation of the decision to pay the instant subsidy cannot be deemed to be limited. Accordingly, the Plaintiff’s assertion on this part is without merit.

A) As seen earlier, the Plaintiff received the instant subsidy even though it did not meet the requirements for the payment of the aged employment subsidy, since the retirement of A constitutes “a case where the retirement of the Plaintiff left the job due to the adjustment of employment under Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act.”

B) Since the employment subsidy for the elderly is paid without any special consideration, there are no circumstances that the Plaintiff would incur special damage in addition to returning the instant subsidy itself that the Plaintiff received through the instant disposition.

C) In light of its size, it is difficult to view that the Plaintiff, based on the instant subsidy that constitutes an excessive amount of 6,647,400, was particularly a new living relationship, and even if it is returned, it is not likely that the Plaintiff violated the Plaintiff’s vested rights, trust, and stability of legal life.

D) As subsidies for the employment of the aged are disbursed from the financial resources raised as taxes of the people in order to promote and maintain the employment of the aged, there is a great need for public interest to ensure that the subsidies for the employment of the aged are fairly and appropriately disbursed.

F. Whether it is unlawful to order the full return of the subsidy in this case

In light of the following, the scope of return of the subsidy of this case cannot be limited to the difference between the amount calculated again, except for A, whose departure from employment was due to an adjustment in employment. Therefore, the Plaintiff’s assertion on this part is without merit.

1) As seen earlier, A’s retirement falls under “a case where he left his job by adjustment of employment”, and thus, in accordance with Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act, the entire amount of the instant subsidies was lacking.

2) The amount of aged employment subsidy is calculated by multiplying the amount publicly notified by the Minister of Employment and Labor by the number of workers aged 60 years or older employed in excess of the ratio determined and publicly notified by the Minister of Employment and Labor according to the type of business, but it cannot exceed the amount calculated by multiplying the amount publicly notified by the Minister of Employment and Labor by the number equivalent to 20/100 of the number of workers in the relevant business (Article 25-2(3) of the Employment Insurance Act). In light of the aforementioned method of calculating the aged employment subsidy, the aged employment subsidy for workers aged

3) Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act provides that, even in cases where a worker aged 55 or older who is not an employee aged 60 or older who is based on the basis of calculation of the elderly employment subsidy has retired from employment through employment adjustment, the payment of the aged employment subsidy shall not be made. As such, the scope of the employee included in the basis of calculation of the aged employment subsidy does not coincide with the scope of the employee subject to the reduction prevention who satisfies the requirements for the disqualification for the payment of the aged employment subsidy, where the decision to pay the aged employment subsidy was revoked ex officio on the ground that the employee was reduced, there is no reason to determine the scope

4) If it is found that the employer should refund only the difference between the amount calculated according to the above calculation method and the amount already paid, excluding only the worker who is revealed to have retired from employment through employment adjustment, even if it was ex post facto revealed that the employer has retired from employment by the adjustment of employment between 55 and 60 years old, it would result in unreasonable results that the amount would not be returned at all, since it was not included in the calculation basis of the subsidy for employment of the aged.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.