(영문) 서울행정법원 2016.12.15. 선고 2016구단22080 판결

On September 10, 2015, the Defendant’s disposition of restricting the payment of unemployment benefits and ordering return to the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. On May 16, 2014, the Plaintiff retired from the National Assembly Member B, and on June 23, 2014, the Plaintiff applied for recognition of eligibility for employment insurance benefits to the Defendant on June 23, 2014, recognized eligibility for benefits of KRW 180 days for fixed payment days, daily amount of job-seeking benefits of KRW 37,512, and received KRW 6,752,120 from the Defendant during eight times from June 30, 2014 to June 12, 2014, as follows:

A person shall be appointed.

B. On September 10, 2015, the Defendant issued an order to return KRW 1,050,30,030,000,000,000,000,000 won for the five unemployment benefits benefit period, on the ground that the Plaintiff received job-seeking benefits unlawfully without filing a report, even though the Plaintiff worked in CD (hereinafter “Nonindicted Company”) located in Mapo-gu Seoul Metropolitan Government (hereinafter “Nonindicted Company”) on October 25, 2014, and received job-seeking benefits, the Defendant issued an order to return KRW 37,510,050,000,000, including the amount returned under Articles 61 and 62 of the Employment Insurance Act, and Articles 81 and 93-2 of the Enforcement Decree of the same Act, and Articles 106 and 115-4 of the Enforcement Decree of the same Act (hereinafter “Enforcement Rule”). [The grounds for recognition] of no dispute, items A through 3, 8, and 9-2.

A. The plaintiff's assertion

Article 105(1)2 of the Enforcement Rule of the Employment Insurance Act provides that the Plaintiff shall faithfully respond to the investigation of misconduct and reduce the amount additionally collected up to 60/10 of the amount of unemployment benefits if he/she promises to pay the amount immediately in writing. In light of the above, the Plaintiff is not obligated to receive unemployment benefits from the non-party company for the first time, the period for which he/she provided labor, and the amount of benefits received is only 70,000 won. However, the Plaintiff shall return the amount of unemployment benefits paid during the pertinent period. However, due to the instant disposition, the Plaintiff shall return the amount of unemployment benefits of KRW 1,050,30 for the pertinent period. As such, the Plaintiff is in breach of the principle of proportionality. In addition, Article 105(1)2 of the Enforcement Rule of the Employment Insurance Act provides that the Plaintiff shall faithfully comply with the investigation of misconduct and shall reduce the amount additionally collected by up to 60/10

The number of days of provision of labor was written differently from the actual ones by negligence of the company and the defendant investigator, and the plaintiff was unable to meet the above requirements in the course of his rebuttal, and the disposition of this case without considering such circumstances is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 40(1)2 of the Employment Insurance Act provides that “If a person has provided labor during the period subject to verification of unemployment, he/she shall report to the head of an employment security office, stating the fact in the first application for verification of unemployment after the date of provision of labor.” In addition, Article 62(1) of the Act provides that “the head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits received, and in addition, the head of an employment security office may order the person who has received job-seeking benefits by fraud or other improper means to collect an amount equivalent to or less than the amount of job-seeking benefits received in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor, and Articles 104 and 105 of the Enforcement Rule provide that a person who has received job-seeking benefits by fraud or other improper means under Article 62(1) of the Act shall be ordered to fully refund the amount of job-seeking benefits and to additionally collect the amount of job-seeking benefits.

The determination of whether such a disciplinary administrative disposition deviates from or abused the scope of discretion under the social norms ought to be made by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the offense committed as the ground for the disposition, and the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In such cases, even if the standard of imposing a disciplinary administrative disposition is prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal rules for handling affairs, and thus, it is not effective externally to the public or court. Therefore, the legality of the relevant disposition should be determined not only by the above disposition criteria but also by the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be immediately deemed legitimate, as it conforms to the relevant disposition criteria, unless there is any reasonable ground to believe that the above disposition disposition is not in itself consistent with the Constitution or laws, or that the result of its application is considerably unreasonable in light of the content of the offense and the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du6967.

(2) In light of the aforementioned relevant statutes and legal principles, comprehensively taking into account the following facts and circumstances acknowledged by the health team, the aforementioned evidence, and the entire purport of statements and arguments in B-1 through 15, the Plaintiff appears to have been sufficiently aware of the fact that he/she should report his/her employment to the Employment Security Office. The instant disposition constitutes a significantly excessive sanction compared to the degree of the Plaintiff’s misconduct, or cannot be deemed as an unlawful disposition contrary to the purport of job-seeking benefits.

On October 27, 2014, the Plaintiff filed an application for job-seeking benefits with the method of preparing and submitting an application for unemployment recognition (Evidence No. 2) on October 27, 2014. The above application requires the daily and business name, telephone number, and result of job-seeking activities to be stated in the details of the job-seeking activities. In addition, there is a separate way for employment (pre-employment) details. The Plaintiff had worked for the non-party company before the date of preparation of

According to the evidence No. 7 of 00, the plaintiff's explanation of unemployment benefits recipients or confirmation of illegal receipt of unemployment benefits received by the plaintiff, which states that if a worker engages in work or income activities regardless of working hours or form, he/she shall report even temporary work, such as daily work or part-time work.

○ Even if the Plaintiff failed to report the provision of labor when filing an application for unemployment recognition due to an intentional cause such as mistake, etc., if the Defendant had filed a voluntary report prior to the commencement of the investigation by an administrative agency, he/she may order the Defendant to return only job-seeking benefits for one day which the Plaintiff actually worked in the non-party company pursuant to Article 104 subparagraph 3 of the Enforcement Rule of the Employment Insurance Act, but the Plaintiff did not file a voluntary report even before the investigation was conducted on September 20

○ Meanwhile, according to Article 104 Subparag. 2 of the Enforcement Rule of the Employment Insurance Act, in cases of the Plaintiff’s fraudulent act on one occasion, the job-seeking benefits shall not be paid for the entire job-seeking benefits from the date of receiving the benefits, but only for the period subject to the recognition of unemployment, and the return of job-seeking benefits shall also be ordered to be returned for the period subject to the recognition of unemployment. This reflects the purport of Article 61 of the Employment Insurance Act that discriminates in the scope of restriction on payment or return depending on the type of fraudulent act

0. Article 105(1)2 of the Enforcement Rule of the Employment Insurance Act provides that an additional collection may be reduced by 60% where a person faithfully complies with an illegal act investigation and a person promises to pay the amount immediately in writing. The provision provides that the amount of unemployment benefits already received may be reduced by 60%. The instant disposition is an exception for a case where a person additionally collects the amount of unemployment benefits, not a case where a person returns the amount of unemployment benefits already paid, and the instant disposition does not include an additional collection disposition. Therefore, the Plaintiff is also a person who does not apply to the Plaintiff, and the Plaintiff did not have

○ In light of the legislative purpose of the Employment Insurance Act that provides a worker with necessary benefits and promotes the stabilization of workers’ livelihood and job-seeking activities by providing them with necessary benefits when they are unemployed, the need for public interest that should be executed transparently and appropriately is greater than the disadvantage suffered by the Plaintiff due to the instant disposition.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.