(영문) 서울고등법원 2018.12.4. 선고 2018누61545 판결

2. On October 10, 2017, the Defendant’s order to return 9 million won to the Plaintiff, additional collection of 18 million won, and disposition to restrict the payment of subsidies for nine months shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition and related statutes;

The court's explanation on this part is the same as the statement on the corresponding part of the judgment of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On January 13, 2015, the Plaintiff visited D on January 13, 2015, and then decided to employ D on the condition that it should complete the employment assistance program. As of February 11, 2015, D actually completed the employment assistance program, it was finally employed as of February 11, 2015. Since February 11, 2015, D began to work normally at the instant workplace, and the Plaintiff applied for employment promotion subsidy for the period from February 11, 2015, which is qualified as a person eligible for subsidies for employment promotion. The Plaintiff did not receive the instant subsidy by fraud or other improper means. The instant disposition made on a different premise is unlawful.

B. Determination

1) Article 23 of the Employment Insurance Act provides that the Minister of Employment and Labor may provide necessary assistance to a business owner who newly employs the aged, etc. or takes measures necessary for their employment stability in order to promote the employment of those who have particular difficulty in finding employment (hereinafter referred to as "seniors, etc.") under the ordinary conditions of the labor market, such as the aged, etc., as prescribed by Presidential Decree. Article 26(1)1 of the former Enforcement Decree of the Employment Insurance Act provides that a business owner who has registered the job-seeking with the employment security office, etc. for the promotion of employment of those who have particular difficulty in finding employment under the ordinary conditions of the labor market and employs the unemployed who has completed a certain employment support program as the insured. In light of the language, purport, and system of the above provision, the payment requirement of the employment promotion

2) In light of the aforementioned legal principles, comprehensively taking account of the overall purport of the arguments in the statement in the Evidence Nos. 1 through 3 (including each number), D entered that “D was on August 16, 2016, and on which it was filed with the Plaintiff’s retirement pay,” as from January 14, 2015 at the instant workplace. The Defendant’s written answer (as of September 6, 2017) submitted to the Defendant at the time of conducting an investigation related to the instant subsidy was written as “ January 14, 2015,” and ② the Plaintiff was recognized as having transferred KRW 519,99 on January 26, 2015 to D under the name of “one-month salary”, “25,250,90 on February 25, 2015,” and each of the Plaintiff’s head offices submitted to D on January 14, 2015.

However, in full view of the following circumstances revealed by the aforementioned evidence, evidence No. 11, evidence No. 11, evidence of the first instance trial witness D, and evidence submitted by the Defendant alone, it is insufficient to acknowledge that the Plaintiff employed D on January 14, 2015, prior to the completion of the employment assistance program, and there is no other evidence to acknowledge it. Accordingly, the Defendant’s disposition based on this premise is unlawful.

① On January 13, 2015, D reported an interview to take place in the instant workplace, and completed the employment assistance program training with the Plaintiff on January 14, 2015, the following day, and submitted documents necessary for employment to the Plaintiff. During the above period, D did not attend the instant workplace, but went back only to the class of the instant workplace after completing the training. D did not attend the instant workplace under consultation with the Plaintiff due to personal circumstances from January 31, 2015 to February 10, 2015, and was drafted again on February 11, 2015, which is the employment period for which the Plaintiff may receive subsidies for employment promotion, and was drafted again on February 11, 2015 as the employment insurance contract with the Plaintiff on February 21, 2015.

③ Although the Plaintiff paid D’s benefits to D on January 1, 2015, and paid D’s full amount of benefits on February 2, 2015, even if D worked on February 11, 2015, it appears that D was an encouragement for D’s completion of the employment assistance program. As D’s failure to work on February 11, 2015, the partial benefits of January 2015 and February 2015 cannot be deemed as remuneration for D’s work, insofar as D’s failure to work on February 11, 2015.

3. Conclusion

Thus, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted, and the disposition of this case is revoked.