(영문) 서울고등법원 2011.12.8. 선고 2010누38150 판결

4. The defendant's disposition to recover KRW 10,306,650 against the plaintiff on December 11, 2008 shall suspend the continuation of the procedure until the judgment of this case becomes final and conclusive.

Purport of claim and appeal

It is as shown in paragraphs 1 and 2 of this Decree (the date of the disposition listed in the written complaint, '208.12, 15' appears to be '208, 11 December 1, 2008'.

Reasons

1. Details of the disposition;

A. The Plaintiff, from September 1, 2006 to December 31 of the same year, who was engaged in the advertisement business in the name of "C" on the first floor of Yongsan-gu Seoul Metropolitan Government building B, set up and reported a plan for employment maintenance measures for eight persons, such as D and E, as indicated below, and received KRW 10,306,650 from the Defendant for the above eight persons during the above period.

[Attachment]

A person shall be appointed.

B. The defendant, on November 30, 2006, when the plaintiff was under the above employment maintenance measure, violated the plan of employment maintenance measures by retiring K, who is the plaintiff's employment insured, due to other corporate circumstances (corporate restructuring due to managerial aggravation), and notified the plaintiff of the return of KRW 10,306,650 (1) of the former Employment Insurance Act (amended by Act No. 8135 of Dec. 30, 2006; hereinafter the same shall apply), Articles 17 (1) and 35-4 (1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 19806 of Dec. 29, 2006; hereinafter the same shall apply).

【Unsatisfy-based dispute over the facts alleged in Gap evidence 27, Eul evidence 28-1, 2, 3, Eul evidence 1-1 through 11, Eul evidence 2-1, 2, 3, Eul evidence 9-1 through 4, Eul evidence 10-1 through 8, 10-13, Eul evidence 11-1 through 4, Eul evidence 12 and 13, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) From May 2005 to December 14, 2006, K was an industrial accident recipient under temporary retirement due to industrial accident, and was not a subject of the employment maintenance plan, and it did not receive subsidies from the Defendant for employment maintenance.

2) K was employed in C’s operation as of November 30, 2006 and voluntarily withdrawn from C’ as of December 1, 2006. Accordingly, the Plaintiff reported the loss of the insured status of K’s health insurance, national pension, etc. on the ground that K voluntarily retired from K as of November 30, 2006. The instant disposition should be revoked on the premise that the Plaintiff retired from K on the ground that the Plaintiff retired from K on November 30, 2006 on the ground that the Plaintiff voluntarily retired from office as of November 30, 206.

B. Relevant statutes

It is as shown in the attached Form.

1) The Plaintiff reported to the Defendant on August 31, 2006, that he would take employment maintenance measures (e.g., pay leave) from September 1, 2006 to December 31, 2006, and received KRW 10,306,650 from the Defendant for employment maintenance support payment.

2) On June 1, 200, K was employed in C and retired from office after acquiring the qualification for the four insured. On December 1, 2006, K did not appear in the wage payment record for K in December 2006, but it appears that K did not have any wage and salary income in December 2006 in the wage payment record for K, wage and salary income withholding receipt for wage and salary income withholding, and wage and salary income report for rent-free books.

3) On December 20, 2006, the Plaintiff reported the disqualification of K, such as employment insurance for K and national pension, with the '2006, Dec. 1, 2006, the date of deprivation of qualification', without specifically stating the reasons for loss, entered the classification code of employment insurance into '15 (other personal circumstances)'.

4) On February 13, 2007, K submitted an application for recognition of employment insurance benefit eligibility to the head of the Ansan-gu Labor Office of the Republic of Korea on the grounds of industrial accident (cerebral ties) as of 2006, 11,30, to the head of the Ansan-gu Labor Office. The head of the Ansan-gu Office recognized that K was entitled to unemployment benefits until September 17, 2007 by deeming that K retired from employment on the grounds of "corporate restructuring caused by industrial accident."

5) However, the Plaintiff revised K’s wage and salary income on December 2, 2006 on the receipt for tax withholding for wage and salary income of K, and revised the Plaintiff’s report on wage and salary income in accordance with the above report, and revised the Plaintiff’s report on wage and salary income. On February 21, 2007, the Plaintiff submitted a request for correction of the reason for the reason for the loss of employment insurance to be revised to “corporate restructuring” and “the date of retirement” December 31, 2006. Based on the above revised report, only the reason for the loss of K’s qualification was revised to “retirement under the employment insurance classification code 25.”

6) On March 2, 2007, when the Plaintiff reported the deprivation of qualification, such as employment insurance for K and national pension, on March 2, 2007, the Plaintiff reported the date of deprivation of qualification by stating the reason of loss as '2.12, 31.', 'management dismissal', and '23', '23. The difference between the date of loss of qualification reported and the date of loss of qualification newly reported is so big that the former report is not reflected in the employment insurance, national pension acquisition information, and the information on the eligibility for national pension was reflected as above as reported, and the Defendant was considered to have retired from employment on November 30, 206 due to 'corporate restructuring due to management deterioration' based on the employment insurance for K and the national pension acquisition information.

7) Meanwhile, from December 13, 2006 to September 28, 2007, K received 2,80,000 won (60,000 won of daily salary in December 13, 2006, and 2,50,000 won in September 28, 2007) each month from L’s representative M as wages from L’s representative M.

【In the absence of dispute over the grounds for recognition, the evidence mentioned above, Gap evidence Nos. 2, Gap evidence Nos. 3 and 4-1, 2, Eul evidence Nos. 5-1 through 5, Gap evidence Nos. 6-2, Gap evidence Nos. 11, 12, 13, Gap evidence Nos. 14-1, 15, 16, 17, 19, Gap evidence Nos. 20-1, 21, Gap evidence Nos. 21, 30-1 through 12, Gap evidence Nos. 54-1, 2, 3, 5-1, 5-2, Eul evidence Nos. 5-1, 2, 3, 5-5-2, Eul evidence Nos. 5-1, 5-2, 3, 6-1 through 5-5, 7-1, 7-5, and 5-1 through 7-5.

D. Determination

1) As to the assertion that K is not eligible for employment maintenance plan, the employment maintenance support payment under Article 16(1) of the former Employment Insurance Act and Article 17(1) of the former Enforcement Decree of the Employment Insurance Act refers to not only a business crisis such as shortage of raw materials, reduction of production volume, reduction of sales amount, inventory accumulated, but also a business crisis such as reduction of business scale, management rationalization, change of production method, and change of organization, etc., a business owner whose adjustment of employment was inevitable due to surplus labor power in the business is not reduced, but also a business owner who takes measures for employment maintenance such as suspension, training, temporary retirement, replacement of human resources, etc. in order to continuously maintain the employment of workers, the amount paid to support the business owner. In light of the significance of the employment maintenance support system, the insured refers to the case where the insured does not leave employment due to the adjustment of employment under the above Enforcement Decree, and the relevant employment maintenance measure is taken.

Not only the insured during the period, but also the entire insured of the relevant workplace, including the insured, who are not subject to employment maintenance measures (see Supreme Court Decision 20057723, Sept. 29, 2005).

According to the above facts, the insured who is eligible for employment maintenance support payment received from the Defendant is recognized as having eight persons, including D, and not corresponding to K. Meanwhile, inasmuch as K’s employee under the above facts and legal principles are acknowledged as the insured of employment insurance, even if K’s employee is not the insured who is eligible for employment maintenance support payment, if K has retired from employment through employment adjustment during the employment maintenance measure period, it cannot be deemed as being eligible for employment maintenance support payment. Therefore, the Plaintiff’s assertion on this part is without merit.

2) As to the assertion that K voluntarily retired from office as of December 31, 2006, it is reasonable to view that K did not work in C after December 2006 due to the following circumstances known by the above facts, i.e., payment of benefits after K's employment maintenance measure period: (i) it is deemed that K did not work in C after December 2006; (ii) on the other hand, the first employment insurance report for K is written as "individual reasons for the loss of the insured status"; (iii) if the plaintiff complies with the employment maintenance measure period by December 31, 2006, it is entitled to receive employment maintenance support payment from the defendant as of December 31, 2006; and (iv) if the plaintiff lost his employment benefits from K to December 26, 2007, it was an industrial accident of 200,000 won as of December 26, 200, which was changed from 2006 to 206,000 won.

According to the plaintiff's change in the plaintiff's statement that "the date of retirement was to be corrected together with the date of retirement," the plaintiff's change in the plaintiff's statement can be sufficiently understood in its circumstances, and Eul's statement Nos. 4-1, 2, and 3, the plaintiff's retirement date stated in K's national pension and the report of deprivation of employment insurance's qualification on March 2, 2007 is not accepted as a request for correction of the date of retirement on February 21, 2007, and it is obvious that it was a clerical error that occurred in the process of filing an application for correction of the date of retirement again, it is reasonable to view K as voluntary withdrawal on December 1, 2006, not on retirement from K due to dismissal or business management reasons, but on L's employment grounds.

Therefore, the disposition of this case on the ground that the plaintiff retired from K for business reasons before December 31, 2006 during the period of employment maintenance measures was unlawful. The plaintiff's allegation in this part is with merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the decision of the court of first instance shall be revoked, and the disposition of this case shall be revoked, and it is recognized that there is an urgent need to prevent irrecoverable damage to the plaintiff due to the continuation of the procedure of the disposition of this case, and it is difficult to deem that the suspension of the procedure of this case may seriously affect public welfare due to the continuation of the procedure, and therefore, it shall be decided ex officio to suspend the procedure of this case until