2012Du21598 Order to return employment maintenance support payment and revocation of a decision to additionally collect additional collection, etc.

Dae Young LbnB Co., Ltd.

The Commissioner of the Central and Central Regional Labor Agency;

Seoul High Court Decision 2012Nu11562 Decided August 30, 2012

September 4, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Ex officio determination

Article 35 (1) of the former Employment Insurance Act (wholly amended by Act No. 8429, May 11, 2007, and amended by Act No. 9315, Dec. 31, 2008) (hereinafter referred to as the "legal provision of this case") (hereinafter referred to as the "legal provision of this case") which served as the basis for the instant disposition as indicated in the judgment of the court below on August 29, 2013, which was following the issuance of the judgment below, is unconstitutional on the ground that it violates the principle of prohibition of comprehensive delegation under Article 75 of the Constitution (see Constitutional Court Order 2011Hun-Ba390, Aug. 29, 2013).

According to the reasoning of the judgment below and the records of the court of first instance cited by the court below, the defendant ordered the return of 28,282,960 won in total, as stated in the "unlawful amount of the disposition" column in the judgment of the court of first instance, which the court below cited by applying Article 35 (1) of the Act of this case and the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010) on the ground that the defendant received employment maintenance support payment against the plaintiff on April 22, 2011 by fraud or other improper means. The lawsuit of this case seeking the cancellation of the above return order was pending before the Constitutional Court's decision of unconstitutionality as the premise of the judgment, and thus the decision of unconstitutionality of the Constitutional Court also affects this case.

Therefore, the part of the order of return, which applied the legal provision of this case, which became invalid due to the decision of unconstitutionality among the above order of return, shall be revoked as it is unlawful in the part of the order of return 1 to 25 of the calculation sheet of this case.

Nevertheless, the court below held that the part of the order to return the amount of illegal receipt under the premise that the legal provision of this case is valid is not illegal. This decision is made by applying the legal provision of this case which lost its effect as the decision of unconstitutionality.

2. Judgment on the grounds of appeal

According to the reasoning of the lower judgment, the lower court determined that, in full view of the circumstances in its reasoning, if the amount of illegal receipt of employment maintenance support payment is a day during any month, the amount of return of employment maintenance support payment or additional collection due to illegal receipt should be calculated on the basis of the total

However, comprehensively taking account of the characteristics of employment security programs and employment maintenance support payments, the subject and legal aspects of the employment maintenance support payments, and the nature and nature of measures to restrict payment in the future, the amount that may be ordered to be returned to a person who received employment security support by fraud or other improper means is limited to those that were provided by false or other unlawful means. Furthermore, Article 35(2) of the former Employment Insurance Act (amended by Act No. 9315 of Dec. 31, 2008) and Article 35(2) of the former Employment Insurance Act (amended by Act No. 1039 of Jun. 4, 2010) provide that “an amount to be additionally collected” or “an amount received (or an amount not exceeding five times) by other wrongful means, such as the provision regarding additional collection, the basis and structure of the provision regarding additional collection, and the nature of additional collection, etc. as a whole, the amount related to additional collection should also be determined by the Supreme Court’s decision of 100Du16408, Dec. 16, 2000.

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the order to return employment maintenance support payment or the scope of additional collection due to illegal receipt and payment, thereby complying with the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Min Il-young

Justices Lee In-bok

Justices Kim Jae-han