(영문) 서울고등법원 2011.5.4. 선고 2010누35236 판결

1. Of the judgment of the first instance court, the part in favor of the Defendant and the part in favor of the Defendant regarding the disposition of additional collection of KRW 5.1 million against the Plaintiff on January 11, 2010 shall be revoked in entirety.

2. The Defendant’s disposition of additionally collecting KRW 5.1 million against the Plaintiff on January 11, 2010 is revoked.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

On January 11, 2010, the Defendant’s repayment of KRW 1020,00,000 for the Plaintiff and additional collection of KRW 5.1 million for additional collection, and each disposition of various kinds of grants and restrictions on payment for one year is revoked.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

Reasons

1. Scope of adjudication of this court;

On January 11, 2010, the Plaintiff sought revocation of the return disposition of KRW 1020,000,000, additional collection disposition of KRW 5100,000,000, and the restriction disposition of payment of subsidies. The first instance judgment dismissed the claim for revocation of the return disposition of incentives and the revocation disposition of the restriction on payment of subsidies among them, and partly accepted the claim for revocation of additional collection disposition. The Plaintiff did not appeal against this, and only the Defendant appealed against the Defendant among the judgment of the first instance court. Therefore, the scope of the judgment of

2. Details of the disposition;

On February 13, 2009, after the plaintiff decided or employed to practically employ patrolmen B, the plaintiff registered job offers on the Internet website, such as the employment security office, etc. under Article 26 (1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same shall apply), and registered job offers in B on the same day.

On July 27, 2009, the Plaintiff applied for the payment of the new employment promotion subsidy (hereinafter referred to as “the subsidy”) to the Defendant on the ground that he newly employed the aged who was unemployed for more than one month of the unemployment period, and on September 1, 2009, the Defendant paid the Plaintiff a total of KRW 1020,000 as shown below.

A person shall be appointed.

On January 11, 2010 thereafter, the Defendant issued a disposition to additionally collect KRW 5,100,000,000,000,000,000, which is five times the illegally received amount of money pursuant to Article 35 of the former Employment Insurance Act (amended by Act No. 10339, Jun. 4, 2010; hereinafter the same shall apply) 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 the same shall apply) on the ground that “the Plaintiff applied for a subsidy to the Defendant, as if he/she employed B through the brokerage of the Worknet, constitutes a case where he/she received the subsidy by false or other unlawful means,” (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] No dispute is raised, Gap evidence 1 through Gap evidence 5, Eul evidence 1-1, 2-2, Eul evidence 2-2 through Eul evidence 6, Eul's testimony and the purport of whole pleadings by the witness B of the first instance court

3. Whether the instant disposition is lawful

The Plaintiff asserts that the Plaintiff’s additional collection of KRW 1020,000,000, which was paid in addition to five times the amount of the grant, even though the Plaintiff did not have received the grant by fraud or other improper means prior to the instant case, is in violation of the principle of proportionality, and that the Plaintiff’s disadvantage

In light of the following circumstances revealed by the above recognition facts and the relevant Acts and subordinate statutes stated in the separate sheet, the instant disposition is excessively harsh to the Plaintiff to the extent that the scope of sanctions against the Plaintiff’s violation would lose proportionality, so there is an error of law that deviates from and abused discretion in the instant disposition.

Therefore, the plaintiff's above assertion is justified.

① According to the provisions of Article 35(2) of the former Employment Insurance Act and Article 78(1)3 of the former Enforcement Rule of the Employment Insurance Act, the Minister of Labor may additionally collect double, three, five times the amount of the irregular benefit depending on the number of times he/she applied for or applied for to receive the subsidy by false or other unlawful means (hereinafter “the number of times of unlawful force”) for the last five years prior to the date of the detection of the fraudulent act, in addition to ordering the return of the subsidy, from a person who received the subsidy by fraudulent or other unlawful means (hereinafter “unlawful benefit”). The “number of unlawful force” in this context is reasonable to deem that the “number of times of unlawful force” does not include the number of times of fraudulent act subject to detection (unlawful demand or fraudulent request). The following grounds are as follows: ① Article 78(1) of the former Enforcement Rule of the Employment Insurance Act appears to otherwise provide for the additional collection amount due to the illegal force that is the subject of detection. In light of this, it is reasonable to interpret that the “number of unlawful force” means a separate unlawful act previously discovered.

④ In interpreting that the frequency of fraudulent acts under Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act includes the frequency of fraudulent acts that are the subject of detection, the case where there is no frequency of fraudulent acts cannot be presented. Accordingly, there is no room for application of the above provision.

(c)the frequency of fraudulent power under Article 78(1)2 of the former Enforcement Rule of the Employment Insurance Act includes the frequency of fraudulent power to be discovered, and in the event that the illegal application and the illegal supply and demand subject to the detection in question are considered to be the frequency of separate illegal power, the frequency of fraudulent power caused by the illegal act subject to the detection in question reaches twice immediately, so there is no room for the application of the above provision.

Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor on February 9, 2010 to “number of times a person received or intends to receive by fraudulent or other unlawful means during the preceding five years prior to the date of detection of the fraudulent act” as “number of times a person receives or intends to receive by fraudulent or other unlawful means during the preceding five years prior to the date of detection of the fraudulent act” under Article 338(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor as “number of times a person receives or intends to receive a restriction on payment or return from

② According to Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act, the amount that the Defendant is entitled to additionally collect from the Plaintiff ought to be not more than twice the amount that the Defendant received. In addition to the legislative intent that Article 35(2) of the former Employment Insurance Act provides five times the upper limit of the additionally collected amount, the disposition of additionally collecting five times the upper limit of the additionally collected amount ought to be limited to cases where the other party was previously subject to sanctions related to the illegal receipt of the incentives, such as granting another person a license to receive the incentives, and granting another license to receive the additionally additionally.

③ In light of the fact that there was no disciplinary measure such as a return disposition on the ground of an illegal receipt of incentives prior to the instant disposition, and that there was only one person subject to the application in this case, the Plaintiff’s imposition of additional collection of incentives by applying five times as much as the maximum scope of additional collection on the incentives illegally received by the Plaintiff is deemed to have lost the proportionality for the degree of such violation.

Furthermore, I examine the scope of revocation of the instant disposition ex officio. In full view of the content, structure, etc. of the provisions of Article 35(1) and (2) of the former Employment Insurance Act, and Article 78(1) of the former Enforcement Rule of the Employment Insurance Act, it is reasonable to view that the instant disposition is subject to the discretion of the imposing authority where the amount of additional collection is collected by ordering the person who received support for employment security and vocational skills development projects under the Labor Act by fraud or other wrongful means, and the amount of additional collection is to be returned. In determining that the imposing authority imposing additional collection is illegal due to deviation from and abuse of discretion, the court is bound to revoke all the disposition imposing additional collection, and the court is not obliged to revoke only the amount exceeding the pertinent portion (see, e.g., Supreme Court Decisions 20053172, Oct. 26, 2007; 2010Du7031, Jul. 15, 2010).

3. Conclusion

Therefore, the plaintiff's claim within the scope of the adjudication of this court is accepted on the ground of its reasoning, and since the judgment of the court of first instance is unfair on the ground of its conclusion, the disposition of this case in the judgment of the court of first instance shall be revoked as well as the part against the defendant in relation to the disposition of this case,