(영문) 수원지방법원 2012.10.25. 선고 2012구합5467 판결

1. On January 17, 2011, the part exceeding KRW 4,863,980 among the disposition for the return of subsidies for maintaining employment of KRW 7,283,630 against the Plaintiff and the disposition for additional collection of KRW 31,810,190, which exceeds KRW 8,575,970, shall be revoked.

2. All remaining claims of the Plaintiff are dismissed.

3. 6/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The Defendant’s disposition of return of employment maintenance support payment of KRW 7,283,630 and additional collection of KRW 31,810,190 against the Plaintiff on January 17, 201 shall be revoked, respectively.

Reasons

1. Details of the disposition;

The following facts are not disputed between the parties, or found in each entry in Gap evidence 1, 2, and Eul evidence 1 through 9 (including each number), by integrating the purpose of the whole pleadings.

A. From December 2008 to March 2009, the Plaintiff, a company engaged in the manufacturing business of optical devices, received subsidies for maintaining employment from the Defendant, i.e., suspension of business, and received subsidies for maintaining employment. The details of the supply of subsidies for maintaining employment for seven workers, including A, in relation to the instant case, are as follows.

【1】

Unit: Won

A person shall be appointed.

B. On July 30, 2010, the instant worker reported to the Defendant on July 30, 2010 that C received again the employment maintenance support payment paid to the special military service provider after the Plaintiff reported the period of compulsory education under his jurisdiction as the period of suspension, and on September 15, 2010, the Board of Audit and Inspection conducted an investigation into the Defendant on September 15, 201 as to whether F among the instant workers was defective, and whether the Defendant received the employment maintenance support payment for the Plaintiff. The Defendant, on January 17, 2011, on the ground that “the Plaintiff reported the period of compulsory education for the special military service provider as the period of suspension, and received the application for employment maintenance support payment by false or other unlawful means, such as reporting the person being dispatched abroad as the person subject to employment maintenance support payment for the instant worker as the suspension of business.” The refund disposition of KRW 7,283,630 (hereinafter “return disposition”) and mountain 21 as follows:

The additional collection of KRW 31,810,190 (hereinafter referred to as “additional collection of KRW 31,810,190”) was determined. The additional collection of KRW 31,810 and the additional collection of KRW 31,810 (hereinafter referred to as “each of the instant dispositions”). 2) 31,810,190 = gold KRW 85,30 (amount unlawfully received in December 2008) + KRW 1,066,660 (amount unlawfully received in January 2009) + KRW 13,696,450 (amount unlawfully received in February 2009) + KRW 16,961,750 (amount unlawfully received in March 5, 209) + KRW 50 (amount wrongfully received in March 2009).

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

A. The plaintiff's assertion

1) From among the instant workers, actual suspension of business for F and G was granted, and in particular, F cannot be excluded from the eligibility for subsidies for maintaining employment solely on the ground that it is while on overseas dispatch. Therefore, the part of each of the instant dispositions on F and G on the ground that the subsidies for maintaining employment related to F and G were illegally received is unlawful.

2) Although business suspension was actually conducted for the remaining period of time except for the period of compulsory education call for those persons under special military service among the instant workers, the Defendant calculated the total amount of subsidies for employment maintenance paid to those persons under special military service during the month in which they received compulsory education and calculated the amount to be additionally collected again based on the amount of refund calculated as above. As such, each of the instant dispositions is unlawful in this regard.

3) In additionally collecting the instant amount, the Defendant calculated the amount equivalent to five times the amount of unlawful receipt by applying Article 78(1)3 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338 of Feb. 9, 2010; hereinafter “Enforcement Rule of the instant case”) on the ground that the Plaintiff’s illegal receipt of the amount of February 2, 2009 and the partial receipt of the amount of money on March 2, 2009, applied Article 78(1)3 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338 of Feb. 9, 2010; hereinafter “Enforcement Rule of the instant case”)

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination as to whether the F and G illegally received or not

A) While rendering each of the instant dispositions, the Defendant’s fact that the Defendant reported a person on dispatch overseas in relation to F’s illegal supply of and demand for business suspension and received a subsidy by fraudulent or other illegal means is recognized as the ground for disposition. In addition, it is important to confirm whether a person subject to employment maintenance measures has actually taken employment maintenance measures as stated in the written reply of July 30, 2012. In the case of overseas workers, it is difficult to confirm whether the person subject to employment maintenance measures has actually taken employment maintenance measures, and thus, it is necessary to exclude the person subject to employment maintenance measures from the person subject to employment maintenance measures. Accordingly, it is reasonable to deem that the ground for disposition on the ground of the portion on the ground of the illegal supply and demand of F in each of the instant dispositions was denied by reporting the overseas workers who are not eligible for employment maintenance support payment as the person subject to employment maintenance measures after reporting them as the person subject to employment maintenance.

However, Article 21 (1) of the Employment Insurance Act provides that "the Minister of Employment and Labor may provide necessary assistance to an employer, as prescribed by Presidential Decree, if the employer who has become inevitable to adjust employment due to the business fluctuations, the reduction of the scale of business due to industrial structure changes, the closure of business or the conversion of business, etc., conducts workplace skill development training, human resources development training, or take other measures for employment security of workers, or may provide necessary assistance to an employer, as prescribed by Presidential Decree." Article 19 (1) of the Enforcement Decree of the same Act provides that in relation to the subject matter for which employment maintenance support payment is inevitable pursuant to Article 21 (1) of the same Act, the employer shall provide the insured who are employed in the business (excluding daily workers and those who are expected to be dismissed or dismissed) with no pay or unpaid leave for at least one month and fails to leave the insured through employment maintenance measures for at least one month, and there is no statutory provision that exclude overseas workers from those subject to employment maintenance measures.

Therefore, in the case of overseas workers, the part of each of the dispositions in this case on the premise that the defendant is excluded from the person subject to employment maintenance measures is unlawful.

As to this, the defendant asserts that the plaintiff's assertion that F was granted employment maintenance support payment on February 2, 2009 and March 2009 because F entered May 11, 2009. In the case of March 2009, F merely 30.1% of the workers who were employed by the plaintiff and did not have to be allowed to suspend their business because of the link with the domestic head office, cannot be accepted. However, in the case of F, the defendant's assertion that F was denied the employment maintenance support payment by making a false report as if the actual suspension of business was implemented even though it was not implemented, it is the fact that the payment of employment maintenance support payment payment was denied by reporting overseas workers who were not eligible for the original reason for the disposition of suspension of business, and that it was not permissible to add or change the reason for such disposition because it was different from the basic fact, and that the defendant's assertion that it was not sufficient to acknowledge the actual suspension of business operation of G 200, the defendant's assertion that it was not sufficient to prove that G 30.

Rather, there is no evidence or basis to regard that G was recorded or fabricated in a false statement, and comprehensively considering the overall purport of the arguments in the evidence Nos. 3 and 4, the above computerized work book may be acknowledged as being attached to the application form after the plaintiff applied for employment maintenance support payment for G on the ground that G was suspended from business within March 2009. Accordingly, considering that the plaintiff applied for employment maintenance support payment for G with materials supporting that the contents of the application are false, it goes against the sound common sense and social norms, it is reasonable to deem that the provision on the number of business suspension days in the above computerized work book is a simple error, as alleged by the plaintiff.

Therefore, the part of each of the dispositions in this case on the ground of unfair supply and demand related to G is illegal as being erroneous.

2) Determination of illegality in calculating the return amount

Comprehensively taking account of the following circumstances, it is reasonable to view that, if the illegally received amount of subsidies for retaining employees falls within any month, the refund of subsidies for retaining employees or the additionally collected amount due to illegal receipt of subsidies for retaining employees shall be calculated based on the total amount of the subsidies received by the relevant employee. Accordingly, the Plaintiff’

A) Article 19(1)1 of the Enforcement Decree of the Employment Insurance Act provides that the rate of the number of days of suspension of business for the number of fixed working days of the insured in the business should be more than 1/15 of the annual number of days of suspension of business for the insured in the business on a monthly basis, thereby deciding whether to be eligible to receive subsidies on a monthly basis. Since the application for subsidies and the payment of subsidies are made on a monthly basis (Article 29 of the Enforcement Rule of the Employment Insurance Act), it is reasonable to determine whether to receive subsidies on a monthly basis (Article 29 of the Enforcement Rule of the Employment Insurance Act), and it is also reasonable to determine whether to receive subsidies on a monthly basis. In particular, it is more true when considering the case where the ratio of the number of days of actual suspension of business

B) A business owner who intends to obtain employment maintenance support shall establish a plan for employment maintenance measures and implement employment maintenance measures in accordance with the plan, and report the plan to the Minister of Labor (Article 20(1) and (2) of the Enforcement Decree of the Employment Insurance Act). If a business owner fails to comply with the plan for employment maintenance measures submitted in advance, it is reasonable to interpret that the total amount of employment maintenance support payment for the relevant month cannot be provided. Therefore, if a business owner applied for a subsidy with the plan for employment maintenance measures, it is reasonable to deem that the entire amount of employment maintenance support payment was illegally acquired, and it is difficult to view that the portion corresponding to the number of days of actual

C) When formulating a plan for employment maintenance measures, it shall undergo consultation with the representative of workers of the business, except where the worker is no less favorable to the worker (Article 20(1) of the Enforcement Decree of the Employment Insurance Act). If the principal of the area of employment maintenance should be paid according to the number of days of actual suspension of business to a business operator who fails to comply with the reported plan for employment maintenance measures, the purport of allowing the business operator to consult with the representative of the worker may

D) Where a worker needs to work due to the circumstances of the business operator, procedures are prepared for filing an application for modification of the plan for employment maintenance measures originally reported to the Ministry of Labor by the day immediately before the intended date of employment (Article 31 of the Enforcement Rule of the Employment Insurance Act)

E) The return or additional collection of the subsidy is not for all subsidies, but for workers who illegally received the subsidy, it is difficult to view that the scope of return is excessive because it is limited to the subsidy for the relevant month.

3) Determination as to whether the calculation of additional collection amount is unlawful

A) According to Article 35(2) of the Employment Insurance Act and each subparagraph of Article 78(1) of the Enforcement Rule of the instant case, the Minister of Employment and Labor may additionally collect double, three, and five times the amount of the subsidy for illegal receipt in accordance with the number of times the person received or applied to receive the subsidy by fraudulent or other illegal means (hereinafter “illegal power frequency”) for the last five years prior to the date of detection, in addition to ordering the return of the subsidy by fraudulent or other illegal means. However, considering the following circumstances, it is reasonable to deem that the relevant fraudulent act that is discovered by the frequency of illegal power is not included in the frequency of the illegal power before the date of detection even if the number of applications is multiple times, and thus, in this case, it is reasonable to deem that the additionally collected amount equivalent to two times the amount of the subsidy for illegal receipt as provided in Article 78(1)1 of the Enforcement Rule of the instant case.

① Article 78(1) of the Enforcement Rule of the instant case seems to differently define the amount additionally collected due to an illegal act that is the subject of detection according to the frequency of illegal electricity within a certain period. In light of the foregoing, the “number of illegal electricity” means a separate illegal act that is committed prior to the relevant illegal act that is the subject of detection.

② In interpreting that the number of fraudulent acts in question is included in the number of times of illegal power under Article 78(1)1 of the Enforcement Rule of the instant case, the case where there is no number of times of illegal power can not be presented, and therefore, there is any inconsistency that the said provision is no room for being applied.

③ Under Article 78(1) of the Enforcement Rule of the instant case, the provision that “the frequency of filing an application with or seeking to receive by fraudulent or other unlawful means during the preceding five years prior to the date of detection of the fraudulent act” was amended by Labor Ordinance No. 338 on February 9, 2010 as “the frequency of receiving or seeking to receive a payment or a return order from the Minister of Labor pursuant to Article 35(1) of the Act during the preceding five years prior to the date of detection of the fraudulent act.” This appears to be aimed at resolving controversy over the interpretation of the said provision by enacting the said interpretation as seen earlier.

B) Therefore, it is unlawful for the Defendant to calculate the additionally collected amount of the instant additional collection disposition by interpreting that the number of unlawful electricity falling under each subparagraph of Article 78(1) of the Enforcement Rule of the instant case includes the number of unlawful electricity to be discovered.

4) According to Article 35(1) and (2) of the Employment Insurance Act, where a person receives employment maintenance support payment by fraud or other improper means, whether the person ordered the return of the subsidy amount and the subsequent additional collection should be subject to the Defendant’s discretion. However, if the Defendant decided to order the return and additional collection, the amount of the subsidy and the subsequent additional collection shall be calculated continuously pursuant to Article 35(1) and (2) of the same Act, and each subparagraph of Article 78(1) of the Enforcement Rule of the same Act, and Article 78(2) of the Enforcement Rule of the same Act, as in the case of this case, the amount returned and the additional collection shall be revoked only in excess of the amount properly calculated pursuant to each of the above statutes.

B) As seen earlier, the part of each of the instant dispositions pertaining to F and G on the ground of illegal receipt of subsidies for maintaining employment is unlawful as the grounds for the disposition are not recognized. The additional collection disposition of this case is unlawful in calculating the amount additionally collected. As such, based on this, the calculation of a reasonable return and additional collection due to the Plaintiff’s wrongful receipt of subsidies for maintaining employment is as follows 3

3) Unit 3: Won

A person shall be appointed.

D. Sub-committee

Therefore, the portion exceeding KRW 4,863,980 among the return disposition of this case and the amount exceeding KRW 8,575,970 among the additional collection disposition of this case should be revoked as it is unlawful. 3. Decision

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, judge and assistant judge;

Judges Park Jae-woo

Judges Park Gin-uri

Note tin

1) The amount additionally collected on the part of December 2008 and January 2009 on the part of the Plaintiff’s illegal receipt is the time when the former Employment Insurance Act was enforced at the time of the Plaintiff’s illegal receipt.

In accordance with Article 78 (1) of the Administrative Rules (amended by Ordinance of the Ministry of Labor No. 319 of April 1, 2009), the plaintiff calculated the amount of money unlawfully received by the plaintiff.

2) The amount to be returned is equivalent to the amount subsidized by fraud or other improper means, and the amount to be additionally collected is false or unlawful, depending on the frequency of unlawful force.

It shall be calculated in two times, three times, and five times the amount equivalent to the amount subsidized by other improper means.

3) The sum total of KRW 10 shall be discarded according to the method calculated by which strike has calculated the return amount of each disposition of this case and the additional collection amount.