(영문) 서울행정법원 2011.2.11. 선고 2010구합37438 판결

A. On December 17, 2002, the Plaintiff was established for the purpose of repairing the electronic, electrical, telecommunications equipment, etc., and was paid KRW 73,93,520 in total with the new employment promotion subsidy for the employment of 15 workers, such as B, etc. (hereinafter “B, etc.”) from October 18, 2006 to September 3, 2008 on the ground that he newly employed B, etc. who had been unemployed for more than three months from around 2006 to around 2008.

A person shall be appointed.

Table 1

B. On October 13, 2009, the Defendant issued a new employment promotion subsidy to the Plaintiff pursuant to Article 35 of the Employment Insurance Act (hereinafter “Act”) and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter “Enforcement Decree of the Employment Insurance Act”) and Article 78 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter “Enforcement Rule of the Employment Insurance Act”) on the ground that the Plaintiff reported the acquisition date of the insured status of B, etc. by reporting it differently from the actual employment date, and received new employment promotion subsidy by fraudulent or other illegal means, and ordered the Plaintiff to return the amount equivalent to the new employment promotion subsidy already paid to the Plaintiff, 73,93,520 won and the period of restriction on payment (amended by Ordinance of the Ministry of Labor No. 338, Sep. 2, 2009).

A person shall be appointed.

2. Whether the disposition in this case is legitimate or not

A. The plaintiff's assertion

(1) The purpose of the new employment promotion subsidy system is to provide a subsidy to a business owner who newly employs workers vulnerable to employment, so so long as the Plaintiff actually employs workers vulnerable to employment, the requirement for receiving new employment promotion subsidy under the law, i.e., the requirement for receiving new employment promotion subsidy, provided that the Plaintiff did not have been unemployed for three months or longer from the date of registration of job-seeking to the date of actual employment, cannot be deemed to constitute a case where the Plaintiff

(2) The Plaintiff did not receive the above incentives by fraud or other improper means because the Defendant failed to properly publicize the fact that the Defendant did not properly publicize the employment promotion incentive system. As such, the Plaintiff was improperly paid the above incentives without intention, the Plaintiff did not receive the above incentives by fraud or other improper means.

(3) Even if there exists the instant disposition, taking into account the fact that the Plaintiff, a small business entity, was at risk of discontinuance of business, as the instant disposition ordering additional collection in addition to the Plaintiff’s incentive, the instant disposition was excessively so excessive that the Plaintiff’s disadvantage exceeded and abused its discretion.

B. Relevant statutes

It is as shown in the attached Table related statutes.

(1) In order to investigate whether incentives have been properly paid to the businesses, including the Plaintiff, the Seoul Gangnam Integrated Employment Support Center established by the Defendant confirmed that the IP address of the Plaintiff and the IP address of the Plaintiff’s business establishment are the same as the IP address of the Plaintiff’s request for certification of job offering and job seeking application, as a result of reviewing data on the current status of IP addresses on job offering and job seeking.

(2) In order to confirm whether the Plaintiff’s new employment promotion subsidy has been unlawfully received, the Seoul Gangnam General Employment Support Center had interviewed the Plaintiff’s representative AD and workers at the Plaintiff’s workplace, and had the said workers receive the benefit passbook, and verified the documents and the benefit payment passbook from AD. The details are as shown below.

A person shall be appointed.

Table 3

(3) On the other hand, the Seoul Gangnam General Employment Support Center inquireds about the details of job seeking, the details of acquisition of employment insurance networks, the details of persons eligible for subsidies for each place of business, the details of account transactions in the name of the plaintiff and the plaintiff's representative AD. The specific details are as listed below in Table 4.

A person shall be appointed.

Table 4)

(4) On the other hand, as of September 23, 2009, B submitted a written confirmation to the Defendant that the Plaintiff’s workplace began to work from April 2007, and F began to work from around the summer in the Plaintiff’s workplace, respectively.

【Ground of recognition】 Each entry of evidence Nos. 4, 2, 3, and 4 (including each number), and the purport of the whole pleadings

(1) According to Article 23 of the Act and Article 26(1) of the Enforcement Decree of the Act and Article 26(1) and Article 4-9 of the [Attachment Table 1] of the Enforcement Decree of the Act, an employer who takes measures necessary for their employment stability in order to prevent structural deterioration of unemployment and facilitate entry of new unemployed into the labor market by facilitating employment of workers who have difficulty in finding a job under the ordinary conditions of the labor market. According to Article 23 of the Act and Article 26(1) and [Attachment Table 1] of the Enforcement Decree of the Act, an employer shall employ a person in a state of unemployment exceeding three months from the date of registering a job-seeking by an employment security office or any other agency prescribed by the Ordinance of the Ministry of Labor, as the insured through an arrangement by the employment security office, etc., who newly employs such person as the insured,

As above, the provision of "shall exceed the period of unemployment for three months from the date of registration of job seeking" as one of the requirements for payment of incentives is to prevent the job offering company from abusing the existing workers under the disguised act of job seekers only for the purpose of receiving the new unemployed employment, despite the purpose of promoting the employment of new unemployed persons.

(B) According to the above facts, it is reasonable to deem that the Plaintiff received the new employment promotion subsidy from the Defendant by filing a false report on the date of employment as if it was newly employed after exceeding the period of unemployment in order to meet the eligibility requirements for the new employment promotion subsidy for B, etc. who already employed and paid the wage. Therefore, it is reasonable to deem that the Plaintiff received the subsidy by fraud or other improper means (the illegality of the fraudulent receipt of the subsidy cannot be justified solely on the ground that the Plaintiff was unaware of the eligibility and procedure for the payment of the subsidy, or that there was no intention

Therefore, this part of the plaintiff's assertion is without merit.

(2) Whether the discretionary authority is deviates or abused or not

(A) In light of the relevant law’s form, structure, and language, the order of return to a person who received a subsidy by fraud or other improper means is not a discretionary act, but a binding act. Therefore, inasmuch as the Plaintiff was found to have received the subsidy by fraud or other improper means, it is lawful to order the Defendant to return all the incentives paid during the period of payment restriction including the incentives paid to other insured persons (the application itself was paid during the period of payment restriction, but was not by fraud or other improper means) as well as the incentives paid by the Defendant to other insured persons (the application itself was paid during the period of payment restriction, and was subsequently paid unfairly) in accordance with the aforementioned provisions. The Plaintiff’s assertion on this part is without merit.

(B) According to the relevant Acts and subordinate statutes, the Minister of Labor may additionally collect double, three, and five times the amount received by false or other unlawful means in accordance with the number of times he/she requested to receive or intend to receive a subsidy by false or other unlawful means for the last five years prior to the date of detection of unlawful acts, in addition to ordering the return of the subsidy, the Minister of Labor may order the person who received the subsidy by fraudulent or other unlawful means. Thus, the issue of additional collection is at the discretion of

However, the defendant additionally collected KRW 73,933,520, which is the amount equivalent to the incentives illegally received by the plaintiff. In full view of the facts acknowledged earlier and the following circumstances revealed in the argument of this case, the disposition of this case is a legitimate disposition taken within the scope of discretion. The plaintiff's assertion on this part is without merit.

In light of the amount of the Plaintiff’s work at the Plaintiff’s workplace and the number of employees working at the Plaintiff’s workplace is 28, and the Plaintiff received a large number of new employment promotion grants from the Defendant from around March 2006 to around 3 years, and received new employment promotion grants from the Defendant by falsely reporting employment dates in relation to employment of 15 workers exceeding a majority of them. In light of the amount of the payment or the process of the instant case (it was confirmed that the Defendant is identical with the IP address of some of the employees who are subject to the Plaintiff’s work workplace, and the Plaintiff reported the acquisition date of insured status more than the actual employment date of 15 employees, such as B, for more than 5 months later, the Plaintiff seems to have been well aware of the requirements and method of applying for the payment of new employment promotion grants.

The criteria for administrative disposition under each subparagraph of Article 78(1) of the Enforcement Rule of the Act are merely the rules of the secretariat inside the administrative agency and thus, it is not effective as an external law. However, such rules aim to ensure convenience in the performance of the administrative agency and uniformity in the application of the Act. Thus, if the internal rules for handling affairs are not unreasonable, it should be respected in principle. The additional collection amount determined by the instant disposition falls short of the criteria for administrative disposition (Article 78(1)1 of the Enforcement Rule of the Act, if there is no number of applications received or filed by fraudulent or other unlawful means during the last five years prior to the date of detection of the illegal act, the additional collection amount shall be collected twice

○ New employment promotion subsidy is a beneficial benefit specially paid to an employer who takes measures necessary for employment security in order to achieve policy goals by facilitating the employment of workers who are particularly difficult to find a job under the ordinary conditions of the labor market, thereby facilitating their entry into the labor market. Therefore, it is highly necessary for the public interest to eradicate illegal activities of the employer who unlawfully received the new employment promotion subsidy by abusing the new employment promotion subsidy system and to protect the finances of the employment insurance.

○ Illegal receipt of incentives, etc. such as the Plaintiff is an act that seriously threatens the foundation and order of the employment insurance system, and even considering all other circumstances asserted by the Plaintiff, it is difficult to deem that the disadvantage of the Plaintiff is exceeded or abused as much as the disadvantage of the Plaintiff compared to the public interest to be achieved by the disposition.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

Judges

For the presiding judge and judge;

Judges Eck-type Intervention

Judges Lee Jae-soo

Note tin

1) The Ministry of Labor shall provide job offers, job seekers with various employment information, such as human resources, job information, employment trends, and other services such as employment applications;

The foregoing shall be aimed at enhancing the efficiency of each employment security office, etc. by electronically processing employment assistance affairs.

under this chapter, the Employment Support Center under the Defendant established the Worknet, which is an employment deviation system, and the Employment Support Center under the Defendant has applied for job offers and job seeking for the Worknet.

The management of employment information services, job offers, job placement services, self-support assistance services, job guidance services, etc. are in charge.

Attached Form

A person shall be appointed.

참조조문

-고용보험법 제35조

-고용보험법 시행규칙 제78조

-고용보험법 시행령 제56조

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