(영문) 수원지방법원 2012.9.27. 선고 2012구합3003 판결

1. On February 9, 2011, the order issued by the Defendant against the Plaintiff to return KRW 800,000 to the Plaintiff and the disposition of additional collection of KRW 1.6 million shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

The following facts may be admitted, either in dispute between the parties or in accordance with Gap evidence 1, 5 (including each number), Eul evidence 2, 5, and 8 (including each number), together with the whole purport of the pleadings.

A. On August 31, 2010, the Plaintiff: (a) operated visiting medical care business with the trade name called Suwon-si Co., Ltd. (hereinafter “instant business”); (b) reported to the Defendant a plan for employment maintenance measures against B, who is an employee of the Plaintiff on the ground of the business deterioration in the instant business; and (c) received KRW 80,000,000 from the Defendant on November 10, 2010 for the above B.

B. On November 23, 2010, the Defendant: (a) visited and investigated the Plaintiff’s workplace; and (b) on February 9, 2011, reported the plan for employment maintenance measures to the Plaintiff on a false basis as if the Plaintiff temporarily retired on the ground of business management even after the Plaintiff’s temporary retirement due to the instant personal circumstances; (c) issued an order to return KRW 80,000 to the Plaintiff, which the Plaintiff received, and issued a disposition to additionally collect KRW 1.6 million equivalent to twice the above subsidies (hereinafter “instant order for return and additional collection”). The Plaintiff sought revocation of each of the instant dispositions to the Central Administrative Appeals Commission, but the Central Administrative Appeals Commission rendered a ruling to dismiss the Plaintiff’s claim on December 13, 2011.

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

1) The plaintiff's assertion

B is a leave of absence due to actual deterioration in the management of the business of this case, and each of the dispositions of this case is illegal since the grounds for the disposition of this case are not recognized.

2) The defendant's assertion

① In light of the fact that F, an employee of the Defendant, visited the Plaintiff’s workplace on November 23, 2010 and sent B with B a leave of absence due to personal circumstances, ② the Plaintiff’s statement of visit to G subject to visit care and H on September 2010, indicated that B confirmed the fact of visit care; ③ the Plaintiff paid B the benefits for September 2010 and October 2010 prior to the period of leave of absence to the Plaintiff paid the same amount as that of August 2010, the period of leave of absence, the Plaintiff reported the plan for employment maintenance measures and received the subsidies for employment maintenance for B. Furthermore, the Plaintiff was lawful as it additionally hired I and J during the period of employment maintenance for B.

B. Relevant statutes

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

C. Determination

1) Determination on the Defendant’s additional assertion of grounds for disposition

The grounds for the disposition in this case where the Plaintiff reported a false employment maintenance plan and received the employment maintenance support payment illegally, and the grounds for the disposition that the Plaintiff additionally employed I and J during the employment maintenance period against B cannot be said to be the same as the basic facts, and the addition of such grounds for disposition cannot be allowed. Therefore, this part of the Defendant’s assertion is without merit.

2) Each statement of the evidence Nos. 2, 3, 5, and 6 (including each number) with respect to the existence of the instant disposition alone is insufficient to recognize that B temporarily laid off due to personal circumstances, not the management deterioration of the instant business, and that he had worked at the Plaintiff’s workplace during September 2010 during the period of employment maintenance, and there is no other evidence to prove otherwise.

Rather, under the following circumstances, Gap evidence 5, Eul evidence 5-9 as well as Eul evidence 5-9's testimony as a whole, and the overall purport of Eul's testimony, i.e., "B" was temporarily retired from office due to bad business operation from September 2010 to December 2010, and "F as the defendant's employee was asked for reasons for temporary retirement from office as of November 23, 2010," and "B" testified that the reasons for temporary retirement from office were met as of November 23, 2010. ② The plaintiff's initial statement within the period of medical care for visit G and H was stated as a social worker B as of September 201, but it was not signed and sealed by the plaintiff, but the name of Eul was printed in the form of medical care for visit used by the plaintiff, and thus, it cannot be viewed that the remaining amount of the plaintiff's retirement from office was not included in the plaintiff's wage of 200 years 100,000 won among the plaintiff's wages paid to the defendant 200.

D. Sub-committee

Therefore, each of the dispositions of this case is unlawful since the grounds for such disposition are not recognized.

3. Conclusion

Therefore, each of the claims of this case is justified, and it is so decided as per Disposition by the assent of all participating Justices.