2010Guhap4064 Revocation of administrative disposition due to illegal receipt of new employment promotion subsidy

A Stock Company

The Head of the Central Regional Employment and Labor Office;

August 11, 2010

September 8, 2010

1. On January 11, 2010, the part exceeding KRW 2,040,00 among the disposition of additional collection of KRW 5,10,000 based on the fraudulent receipt of the new employment promotion subsidy that the Defendant rendered to the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

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

On January 11, 2010, the Defendant revoked each disposition of (1) restriction on the payment of incentives for one year, (2) return of incentives for 1,020,000, and (3) collection of KRW 5,100,000, based on the illegal receipt of new employment promotion grants to the Plaintiff.

1. Details of the disposition;

A. The Plaintiff, a company running a specialized construction business, was newly employed on April 10, 2009 by newly employing workers B, and on July 27, 2009, applied for a new employment promotion subsidy to the Defendant on April 2009 and May 1, 2009. On September 1, 2009, the Plaintiff received the two-month incentives from the Defendant (hereinafter “instant incentive”).

B. Around November 2009, the Defendant: (a) applied for the payment of incentives to B not eligible for incentives by fraudulent or other illegal means; (b) Article 35 of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010); (c) Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010); and (d) Article 78 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010); and (d) Article 78 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 11, 2010); (b) Article 35 of the former Employment Insurance Act (amended by Act No. 10339, Aug. 31, 2010); (c) the purport of each of the instant incentives to be returned to KRW 10 or 500.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

① The Plaintiff employed B through an interview through the arrangement of the employment security office, and provided convenience to B, which is not familiar with the computer, via the Plaintiff’s computer in the Plaintiff’s company. As such, each of the dispositions of this case on the premise that the Plaintiff was paid the instant incentive by fraud or other improper means is unlawful.

② Although the Plaintiff did not receive or intend to receive the grant by false or other unlawful means prior to the instant case, the disposition of collecting five times the amount of the grant of this case is an unlawful disposition that abused discretion.

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) The legality of the restriction on payment of subsidy and the return of subsidy

Comprehensively taking account of the aforementioned evidence, Eul's evidence, Eul's statements, Eul's evidence Nos. 3 through 6 (including each number), and witness Eul's testimony, Eul, from April 13, 2008, joined and worked for Eul corporation located in the same building as the plaintiff company and retired from January 31, 2009, consulted on the personnel management officer and the plaintiff company's office after visiting the plaintiff company's office on February 13, 2009, and registered the "Internet site" (www. Work.go.go.m., kr, hereinafter referred to as "the defendant company") by using a computer installed in the plaintiff company on February 13, 2009, which is an employment security office, such as the plaintiff company's office, as provided in Article 26 (1) of the former Enforcement Decree of the Employment Insurance Act, and the fact that the plaintiff company registered for job offer to the plaintiff company on the same day, and that the plaintiff company also arranged the plaintiff company to work for the plaintiff company from Apr. 1, 20, 201.

According to the above facts of recognition, it is reasonable to view that the plaintiff, although he/she actually decided to employ B prior to the registration of job offer on February 13, 2009, he/she followed the arrangement of the worknet after he/she was employed. Therefore, the plaintiff's application for new employment promotion payment to the defendant on the ground that the plaintiff employed B by the arrangement of the worknet and received it shall be deemed to constitute the act of receiving the support of new employment promotion subsidy by fraud or other improper means.

Therefore, the Defendant’s order to return KRW 1,020,00 already received by the Plaintiff to the Plaintiff pursuant to Article 35(1) of the former Employment Insurance Act and Article 56(1)1 and (2) of the Enforcement Decree of the same Act, and the disposition that the Defendant decided not to pay subsidies for one year is lawful.

According to Article 26 (1) of the Enforcement Decree of the Act, the Plaintiff asserts that, in light of the fact that the business owner who newly employs a person in a state of unemployment beyond the period of unemployment by the person subject to employment security office, etc., grants a new employment promotion subsidy to the business owner who newly employs him/her through the referral of the employment security office, and that the form of such referral is not distinguished, it falls under the requirements for receiving a subsidy, and that post-management is not provided by false or other unlawful means as provided by the relevant Acts and subordinate statutes. However, although the new employment promotion subsidy system has performed job-seeking activities for a certain period under the ordinary conditions of the labor market, it is a system that pays a subsidy only when the employment security office is prepared to promote the promotion of employment of the vulnerable class of employment by supporting the job-seeking business owner who newly employs him/her through the job security office, etc

(2) Whether the discretionary authority of the collection disposition is deviates or abused

According to Article 35(2) of the Employment Insurance Act, where the Minister of Labor orders a person who received a new employment promotion subsidy by fraud or other improper means to return the subsidy, he/she may additionally collect an amount not exceeding five times the already paid amount. We examine whether the Defendant’s additional collection of KRW 5,100,000, which exceeds five times the instant subsidy, abused the discretion.

In light of the fact that Article 78(1) of the former Enforcement Rule of the Employment Insurance Act, which applies to this case, provides that the amount of additional collection shall be calculated as five times the upper limit of the additional collection under the Employment Insurance Act by distinguishing each subparagraph from each other, and that there is no number of times applied to the Plaintiff by false or other unlawful means during the last five years prior to the date of detection of the fraudulent act; that is, three times the amount paid if the above number of times is one; that is, five times if the above number of times is more than twice; and that the Employment Insurance Act provides five times the upper limit of the additional collection; that is, in order to calculate the additional collection amount, five times the above upper limit of the additional collection is calculated as five times the amount already imposed by the administrative agency; that, in order to apply the additional collection for five times the above upper limit of the additional collection, it is reasonable to view that the Plaintiff was not subject to sanctions, such as a return order, etc. on the ground that the Plaintiff received new employment promotion subsidy from the Defendant before the disposition of this case.

Furthermore, considering that there is no record of the Plaintiff’s receipt of the subsidy for new employment promotion by improper means prior to the instant case, and that there is only one person who received the subsidy in this case, and the amount is only 1,020,000 won, it is reasonable to additionally collect 2,040,000 won equivalent to twice the subsidy that the Plaintiff received pursuant to Article 78(1)1 of the former Enforcement Rule of the Employment Insurance Act.

Therefore, the portion exceeding KRW 2,040,000 out of the instant additional collection disposition is unlawful and thus revoked.

3. Conclusion

Therefore, the plaintiff's claim is partially reasonable within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the highest judge;

Judges Yellow Senior Superintendent

Judges Min Jong-nam

A person shall be appointed.

A person shall be appointed.