(영문) 춘천지방법원 2011.12.23. 선고 2011구합1182 판결

1. The disposition that the Defendant rendered against the Plaintiff on March 21, 2011 re-determination of the illegal receipt and return of employment security activities and the return amount shall be revoked to the extent exceeding KRW 67,014,040.

2. The plaintiff's remaining claims are dismissed.

3. Two-thirds of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

On March 21, 2011, the defendant revoked the disposition of re-determination of unfair receipt and return of employment security activities against the plaintiff.

Reasons

1. Details of the disposition;

A. From March 15, 2006 to August 3, 2009, the Plaintiff, a company engaged in franchise manufacturing business and sales business, designated four persons, such as B, as the following [Attachment 1], as a person subject to paid leave, and reported the plan to maintain employment to the Defendant, and received KRW 46,803,470 from the Defendant during the above period.

[Attachment 1]

A person shall be appointed.

B. On May 25, 2010, the Plaintiff’s representative director D was sentenced to a two-year judgment of conviction of 8 months grace period, and on June 2, 2010, the above judgment became final and conclusive on the ground that on July 9, 2010, the Defendant, on the ground that on the ground that on the ground that on July 9, 2010, the payment of 100% of the ordinary wage was made to the Plaintiff’s employees as business shutdown allowance, deposited 80% of the ordinary wage, paid to the employees of the Defendant, and submitted a copy of the passbook deposited with 100% of the ordinary wage to the employees of the Defendant, he received 46,803,470 won over 19 times as shown in Table 1 [Attachment 1], and that on the ground that on the ground that on the ground that the employment maintenance subsidy received by the Plaintiff was received by unlawful means, the Defendant did not additionally collect the amount returned, 198,190,76,106 won.

D. Accordingly, on March 11, 2011 following the Plaintiff’s submission of opinions, the Defendant re-determined and notified the Plaintiff of the payment of the returned amount of KRW 31,037,170, and the additionally collected amount of KRW 67,848,890 in total, KRW 98,86,060, pursuant to Article 35 of the Employment Insurance Act and Article 78(1) of the Enforcement Rule of the same Act (hereinafter “instant disposition”).

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 to 7, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) It is true that the Plaintiff pretended that 100% of the ordinary wage was actually paid to the workers as a shutdown allowance, but since the Plaintiff paid 80% of the shutdown allowance not to pay the shutdown allowance to the workers, the benefits actually acquired by the Plaintiff is only 20% of the amount that the Defendant received from the Defendant, and thus, the Defendant should order the return and additional collection only for the amount equivalent to 20% of the amount that the Plaintiff received from the Defendant.

(2) Article 107(1) of the Employment Insurance Act provides that the Defendant’s right to return and additionally collect money shall expire if it is not exercised for three years. Thus, on March 10, 2008, which was from March 21, 2011 to March 21, 2008, the time of the instant disposition, the Plaintiff issued an order to return and additionally collect money that the Plaintiff received from the Defendant (on February 2, 2008, the amount subsidized: 2,678,240 won): the Defendant’s right to return and additionally collect money has already expired. However, the Defendant issued an order to return and additionally collect money that the Plaintiff received from the Defendant on March 10, 208.

(3) The disposition imposing the refund and additional collection for the employment maintenance support payment received by the Plaintiff is a discretionary act. Considering the circumstances leading up to the Plaintiff’s receipt of employment maintenance support payment, the instant disposition is erroneous in the misapprehension of discretionary authority.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 35 (1) of the Employment Insurance Act provides that "the Minister of Employment and Labor may restrict assistance or order a person who has received or intends to receive assistance from employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means, as prescribed by Presidential Decree, or return the amount received by false or other unlawful means," and Article 35 (2) of the same Act provides that "the Minister of Employment and Labor may additionally collect an amount not exceeding five times the amount received by fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor, if the Minister orders the return pursuant to paragraph (1)." Thus, as alleged by the Plaintiff, even if the Plaintiff actually paid the amount equivalent to 80% of the amount of subsidies for maintaining employment that the Plaintiff received by fraud or other improper means to the workers, the Defendant may order the full return of subsidies for maintaining employment that the Plaintiff received by the Plaintiff. As such, the Plaintiff's assertion is without merit.

(2) As to whether it is unlawful for the Plaintiff to order the return and additional collection of the funds received on March 10, 208, Article 107(1) of the Employment Insurance Act provides that "the right to receive subsidies, unemployment benefits, childcare leave benefits, or maternity or paternity leave benefits under Chapters III through V shall expire if it is not exercised for three years." In full view of each of the statements in Articles 3 and 4, the fact that the Plaintiff was unlawfully paid 2,678,240 won for February 10, 2008 for two and three others on March 10, 2008 by the Defendant. Thus, the Plaintiff’s assertion that the right to receive subsidies for maintaining employment illegally received from the Defendant on March 10, 2008 is extinguished as of March 21, 2011, which is the date of the instant disposition, and thus, the Plaintiff’s claim that the payment of subsidies for maintaining employment was extinguished for two years as of March 21, 2011.

(3) As to whether the instant disposition was a deviation or abuse of discretion

(A) First, we examine whether the amount returned and the amount additionally collected by the Defendant are justifiable.

1) Under Article 107(1) of the Employment Insurance Act, the Defendant’s right against the Nos. 1 through 7 of the [Attachment 1] set forth above against the No. 1 or 7 set forth above

The statute of limitations expired (the Defendant did not take into account when calculating the return amount of the instant disposition and the amount additionally collected on the premise that the statute of limitations expired for 1 or 6 times, and the Defendant’s right to 7 times as seen earlier had already expired as seen earlier).

2) The amount of additional collection as to the sequence 8 through 14 as to the [Attachment 1] Nos. 8 through 14] above should be calculated as the "amount equivalent to the amount deemed to have been received by unlawful means" under Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319 of Apr. 1, 2009).

3) According to Article 35(2) of the Employment Insurance Act, Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 338, Feb. 9, 2010; hereinafter referred to as the “former Enforcement Rule”), and Article 5(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 1, Jul. 12, 2010; hereinafter referred to as the “former Enforcement Rule”), with respect to a person who received subsidies by fraud or other improper means, the Minister of Employment and Labor, in addition to ordering the return of the subsidy, may additionally collect twice, three,5 times as much as the subsidy was received by fraud or other improper means for the last five years before the date of fraudulent act (hereinafter referred to as “illegal power frequency”). Accordingly, the Defendant’s additional collection from March 209 to March 4, 2009.

① However, in light of the purport of Article 78(1) of the former Enforcement Rule differently stipulating the amount of additional collection due to unlawful acts within a certain period of five years, the number of such unlawful acts means a separate unlawful act committed prior to the detection of such unlawful acts. ② In a case where the number of such unlawful acts is construed as including the number of unlawful acts subject to detection, the above provision may not be applied to the absence of the number of such unlawful acts, and ③ in light of the number of unlawful acts under Article 78(1)2 of the former Enforcement Rule, it shall be interpreted that the number of unlawful acts subject to detection is included in the number of unlawful acts under Article 78(1)1 of the former Enforcement Rule, and thus, the above provision shall not be applied to the case where the Plaintiff received or intends to receive the above unlawful acts for five years prior to the discovery of such unlawful acts (the number of unlawful acts subject to detection of such unlawful acts is no more than the number of unlawful acts under Article 78(1)2 of the former Enforcement Rule prior to the discovery of such unlawful acts.

4) Sub-determination

Ultimately, the amount that the Defendant may order the Plaintiff to return the employment maintenance support payment received by the Plaintiff and the amount that can be additionally collected are as shown below (attached Table 2).

[Attachment 2]

A person shall be appointed.

Therefore, the instant disposition is an unlawful act of deviating from or abusing the discretionary authority to the extent that it exceeds 67,014,040 won (i.e., return amount of KRW 28,358,930 + additionally collected amount of KRW 38,65,110).

(B) Furthermore, as to whether the order to pay KRW 67,014,040 among the dispositions in this case was abused or abused by discretionary authority, since it is a beneficial benefit which is specially paid to an employer who takes measures necessary for employment security in order to achieve the policy objective of contributing to the stabilization of workers’ livelihood and the economic and social development through the prevention of unemployment, etc., the employment maintenance support payment system is to eradicate illegal acts committed by employers who abuse the employment insurance system in an unlawful way and to protect the public interest of employment insurance, and the illegal receipt of employment maintenance support payment is a serious threat to the foundation and order of the employment insurance system, and the need for sanctions is strongly demanded. The Plaintiff’s improper receipt of employment maintenance support payment for a long period of up to three years and six months. In full view of the fact that the Plaintiff did not reach a large amount of 46,803,470 won, it cannot be deemed that the Plaintiff’s abuse of discretionary authority may not be deemed to have affected the Plaintiff’s abuse or abuse of discretionary authority.

3. Conclusion

Therefore, the part exceeding KRW 67,014,040 among the disposition of this case (i.e., the returned amount of KRW 28,358,930 + the additionally collected amount of KRW 38,65,110) should be revoked as unlawful. Thus, the Plaintiff’s claim is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.