(영문) 대전지방법원 2014.8.20. 선고 2013구합2848 판결

On April 26, 2012, the Defendant’s disposition to restrict the payment of unemployment benefits and to additionally collect the return thereof against the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. From September 1, 2009, the Plaintiff has been employed in B for the purpose of retail business with food materials as well as food materials.

B. On January 24, 2011, the Plaintiff filed an application for recognition of eligibility for job-seeking benefits with the Defendant on the ground that he/she was on January 15, 2011, and on the ground that he/she was on the job-seeking benefits. The Defendant recognized the eligibility for benefits of KRW 120 days for the fixed benefit payment date, KRW 31,104, and received the total amount of job-seeking benefits at KRW 3,732,470 on five occasions from January 31, 201 to May 30, 201. The employees of B, “D operated by C” and “E” provided information that the Plaintiff received unemployment benefits while continuously providing labor in “B and D” and “E” through a national questioning on January 5, 2012.

D. As a result of the investigation based on the above information, the Defendant: (a) on April 26, 2012, pursuant to Articles 61 and 62 of the Employment Insurance Act and Articles 92 (Criteria for Recognition of Employment)5 and 7 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 74, Jan. 25, 2013), on the ground that the Plaintiff provided labor to the Defendant during the period subject to recognition of unemployment and received unemployment benefits unlawfully without reporting the fact to the Defendant (hereinafter “instant disposition”).

E. On August 17, 2012, the Plaintiff filed a petition for review seeking revocation of the instant disposition with an employment insurance examiner, but was dismissed. On May 10, 2013, the Plaintiff filed a petition for reexamination with the Employment Insurance Review Committee, but was also dismissed.

【Ground of recognition】 The fact that there has been no dispute, Gap’s 1 through 3, Eul’s 1 through 3,6,7,8, and 9(including the number of pages), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff’s visit “D” and “E, a place of business operated by C during the period of job-seeking benefits, while performing job-seeking activities during the period of job-seeking benefits, and does not provide work with money. Thus, the instant disposition is unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) According to Article 47(1) of the Employment Insurance Act (hereinafter “Act”) and Article 69(1) of the Enforcement Decree of the Employment Insurance Act, where an eligible recipient provided labor during the period subject to the verification of unemployment, he/she shall report to the head of an occupation-specific agency, stating the fact in the first application for the verification of unemployment submitted after the date of provision of labor. Pursuant to Article 61(1) of the Act, a person who received, or attempted to receive, unemployment benefits by fraud or other improper means is not eligible for job-seeking benefits. Under Article 61(2) of the Act, the act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Act constitutes cases where the recipient received unemployment benefits by fraud or other improper means. In such cases, the head of an employment security office may order the return of all or part of job-seeking benefits already paid pursuant to Article 62(1) of the Act and Article 105(1) of the Enforcement Rule of the Employment Insurance Act (hereinafter “Enforcement Rule of the Act”).

On the other hand, Article 47(1) of the Act and Article 92 of the Enforcement Rule of the Act provide that whether the provision of labor constitutes employment shall be determined as 60 hours or more (including the case where the prescribed working hours are determined as 15 hours or more a week) and their work hours per month are provided (Article 1) through subparagraph 1, Article 2 subparagraph 6 of the Act (Article 2 subparagraph 3), where a daily worker provides his work as a daily worker under subparagraph 6 of Article 2 of the Act (Article 2 subparagraph 4), where he receives not less than the amount determined by the Minister of Employment and Labor regardless of the name such as wages, etc. in return for the provision of labor (Article 4) (Article 47 subparagraph 4), where it is deemed difficult for him to ordinarily find employment in other businesses by providing his work, including a non-regular daily worker, or where it is recognized that he has been employed in other businesses (Article 7). In light of the nature of his work and the purpose of Article 69(2) of the Enforcement Decree, the above provision of the Act does not require continuous employment.

2) Comprehensively taking into account the following facts acknowledged by comprehensively taking into account the descriptions of evidence Nos. 4, 9, and 12 of the Health Team No. 4, as well as the witness F’s testimony and the overall purport of oral arguments in the instant case, it is reasonable to deem that the Plaintiff provided labor in D and E during the period subject to the recognition of unemployment, and the witness F’s testimony to the effect that the Plaintiff appears to be contrary to the foregoing, “The Plaintiff reported a fact-finding with only an influence with the Plaintiff merely with influenction with the Plaintiff, and later, the Plaintiff did not have any work as the employee, because he was admitted from other employees, is likely to believe it in light of the following facts, and even if the Plaintiff did not receive the price for the provision of labor as alleged below, it does not interfere with the recognition:

① From June 2009 to January 19, 201, F, as an employee of B, served in E from January 201 to January 20, 201, and from January 20, 201, the end of August of the same year. During the process of investigating the Plaintiff’s illegal receipt of goods, F, upon reporting the Plaintiff’s illegal receipt of goods, performed the overall management work by shipping food materials to D and E or by acting for C at each of the said places of business. During the period subject to the recognition of unemployment, F, at the time of the Plaintiff’s work, stated that the office work of B was completed, and that from January 201 to April 201, 201, D was primarily performed the overall management work, such as delivery telephone, ice ice, and delivery, on behalf of each of the representatives.

② In the process of the instant investigation, the Defendant visited D around February 3, 2012, and visited D with the employee. At the time, the said employee was working for the Plaintiff from the opening of the door to 9:30 to 10:0 p.m., and almost every day. On April 29, 2011, the Plaintiff stated that the Plaintiff was in charge of the management of employees, delivery, delivery, neglect, employment, etc. with D’s ticket C, until the change of D’s business owner.

③ In the process of the instant investigation, the Defendant investigated the other employees who worked in B on the wire, and the said employees called the Plaintiff’s president. The Plaintiff was retired from B, and the Plaintiff’s interview at the Plaintiff and B office on March 1, 201 during the period subject to the recognition of unemployment of the instant case, and worked in E from April 1, 201 to June 20, 201, and entered into an employment contract with the Plaintiff orally. The Plaintiff visited the workplace once a week to check the sales and actually manage the sales. The Plaintiff stated that the Plaintiff was more frequently managing the sales of E or received a report on the sales of the Plaintiff than the representative C.

④ A company operated by the Plaintiff’s type G, which is the Plaintiff’s type of business, and the number of employees ordinarily worked is not more than five. Among them, the Plaintiff and the Plaintiff’s female students were included. D and E were registered as the Plaintiff’s wife and the Plaintiff’s female residents as the business owner (representative). However, D and E were registered as the employees of B in relation to 4 major insurance, etc., and their employees were registered as the employees of B in relation to 4 major insurance, etc., and were operating as D and E with G, CO B, and E, by directly supplying food materials from B to D and E.

⑤ As seen earlier, the Plaintiff received job-seeking benefits from May 201 on the ground that the Plaintiff was subject to recommendation in B, and “H, a business entity that was reported to the Defendant on April 21, 201 during the job-seeking period, but was not employed, was a business entity whose representative was G. In addition, the Plaintiff re-entered into B on June 201, immediately after the expiration of the period subject to recognition of unemployment.

3) Therefore, insofar as the Plaintiff received job-seeking benefits without properly notifying that it provided labor in D and E during the period subject to recognition of unemployment of this case, the Plaintiff constitutes “person who received job-seeking benefits by fraud or other improper means.”

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.