(영문) 창원지방법원 2012.12.20. 선고 2012구합2953 판결

The Defendant’s restriction on the payment of unemployment benefits to the Plaintiff on June 5, 2012, and the order to return KRW 4,438,770, and the order to additionally collect KRW 2,663,260 as of July 5, 2012 shall be revoked.

Reasons

1. Details of the disposition;

A. On September 29, 2010, the Plaintiff visited the Jinhae Employment Center of the Busan Regional Employment and Labor Agency and filed a unemployment report for receiving unemployment benefits (an application for recognition of eligibility for benefits; hereinafter “instant application”).

B. Accordingly, from October 6, 2010 to February 10, 2011, the Plaintiff received a total of KRW 4,438,770 for 150 days of job-seeking benefits from the Defendant. On June 5, 2012, the Defendant issued an order to additionally collect KRW 4,438,770 equivalent to 10/100 of the amount of unemployment benefits, and to return KRW 8,87,540 of the amount of unemployment benefits on the ground that “the Plaintiff reported that he/she was unemployed by failing to meet the eligibility requirements for job-seeking benefits and received job-seeking benefits fraudulently” under Articles 61 and 62 of the Employment Insurance Act, and Articles 104 and 105 of the Enforcement Rule of the same Act, on the ground that “the Plaintiff received job-seeking benefits by reporting that he/she was unemployed by falsity.”

D. On July 3, 2012, the Plaintiff requested the Defendant to pay immediately the amount of the order to return unemployment benefits, and the Defendant, on July 5, 2012, requested an additional collection and exemption. The Defendant adjusted the amount to be collected additionally pursuant to Article 105(1)2 of the Employment Insurance Act by reducing the amount to KRW 60,63,260,000, to KRW 7,102,030 ( = 4,438,70 + + KRW 2,663,260) to notify the Defendant of the order to return (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 11 evidence (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

When the plaintiff's employment insurance was dismissed from the soup Supbry Coup (hereinafter referred to as "heupbry"), which was listed in the plaintiff's employment insurance as the workplace, the plaintiff applied for employment insurance with the knowledge of employment status. The plaintiff expressed his intention to resign from the E Child Care Center (hereinafter referred to as "Child Care Center") located in Jin-gu, Jin-si (hereinafter referred to as "Child Care Center") at the time of the application of this case, but he worked as a part-time only until the time of the request by the director of the Child Care Center, so the plaintiff applied for unemployment benefits, and the disposition of this case was unlawful for the following reasons.

(1) Article 62 of the Employment Insurance Act, which the Defendant considered as the part of the instant disposition, is interpreted as “the job-seeking benefits shall not be included in the category of illegal receipt from the time when the Plaintiff actually became unemployed after filing an application for erroneous unemployment benefits as a site for each applicable law or laws.” As such, the unemployment benefits that the Plaintiff received in the unemployment status after November 10, 201 should be deemed as justifiable benefits, the order of return or additional collection for that portion is unreasonable. Therefore, the unemployment benefits that the Plaintiff received before November 9, 2010 are merely about one million won, and thus, the amount subject to the order of return and additional collection should be limited to one million won.

(2) In addition, Article 104 of the Enforcement Rule provides an exception to the full return in the event of a single fraudulent act. Since the Plaintiff committed a single illegal act, it is unreasonable to order the full return.

(3) Article 62 of the Employment Insurance Act provides that a person who received job-seeking benefits by fraud or other improper means may be ordered to return all or part of the job-seeking benefits. Article 104 of the Enforcement Rule provides that the person who received job-seeking benefits shall return all or part of the job-seeking benefits without specifically referring to the circumstances or reasons for the wrongful receipt of benefits and shall return all or part of the job-seeking benefits, without setting detailed standards according to the details and specific degree of the illegal receipt of benefits. The above Enforcement Rule is invalid because it is contrary to the purport of delegation

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Facts of recognition

(A) On April 5, 2009, the Plaintiff worked at a nursery school on June 1, 2009, and worked at a soup house from June 1, 2009, and worked at two workplaces thereafter.

(B) Around August 20, 2010, the Plaintiff retired from a soup room, but continued to work in a child care center until November 9, 2010.

(C) However, on September 29, 2010, the Plaintiff visited the Busan Regional Employment and Labor Agency of the Korea Job and reported the unemployment for receiving unemployment benefits. On September 29, 2010, the Plaintiff’s application for recognition of eligibility for benefits prepared by the Plaintiff is indicated as the “final making soup”, “unemployment”, and “unemployment”.

(D) On October 13, 2010, the Defendant recognized the unemployment recognition date for the Plaintiff, and recognized the recipient’s entitlement as of March 4, 201, the expiration date between the supply and demand period. The Defendant paid the Plaintiff the unemployment benefits totaling KRW 4,438,770.

[Ground of recognition] Facts without dispute, entry of Eul 1 to 7 evidence, purport of the whole pleadings

D. Determination

(1) Determination as to the assertion of the above A. (1)

(A) “False or any other unlawful means” that can be subject to sanctions under the former Employment Insurance Act (amended by Act No. 10895, Jul. 21, 2011; hereinafter “Employment Insurance Act”) refers to any unlawful act committed by a person who is not eligible for benefits in general in order to disguise eligibility for benefits or to conceal the fact of employment or the occurrence of income (see Supreme Court Decision 2009Du4272, Jun. 11, 2009).

(B) Article 40(1) of the Employment Insurance Act provides that "job-seeking benefits shall be paid in cases where the insured, who has left his/her job, satisfies the requirements such as the condition of being unemployed despite being able and willing to work, and Article 44(1) of the same Act provides that "job-seeking benefits shall be paid for the days when the beneficiary is recognized as unemployed by the head of the Employment Security Office from among the days when the beneficiary is unemployed." As seen earlier, the Plaintiff, who was not unemployed, filed the instant application for job-seeking benefits while hiding such circumstances despite the absence of eligibility to receive the job-seeking benefits, and thus, the Plaintiff constitutes a person who received the unemployment benefits by fraud or other improper means under Article 61 of the Employment Insurance Act

(C) In addition, to receive unemployment benefits, the report of unemployment under Article 42 of the Employment Insurance Act and the recognition of eligibility for benefits under Article 43 of the same Act must be obtained. Even if the Plaintiff was unemployed after November 10, 201, the Plaintiff does not necessarily recognize the eligibility for unemployment benefits as a matter of course due to the fact of unemployment.

(D) Therefore, the Plaintiff’s above assertion on a different premise is without merit.

(2) Determination as to the assertion of the above A. (2)

Article 104 subparag. 2 of the Enforcement Rule of the Employment Insurance Act provides for an exception to the full return of persons falling under any of the subparagraphs of Article 80 of the Enforcement Decree of the Employment Insurance Act, and there is no evidence to find that the Plaintiff falls under the exception of each subparagraph of Article 80 of the Enforcement Decree of the Employment Insurance Act, and the above Enforcement Rule shall not be deemed to apply to the Plaintiff. Accordingly, the Plaintiff’

(3) Determination as to the assertion of the above A. (3)

(A) Article 62(1) of the Employment Insurance Act provides that a person may order the return of all or part of job-seeking benefits received by fraud or other improper means, and additionally collect an amount not exceeding the amount equivalent to the amount of job-seeking benefits received according to the standards set by Ordinance of the Ministry of Labor. In addition, the provision provides that only the upper limit of

(B) The Enforcement Rule of the Employment Insurance Act provides that, in principle, the entire amount of job-seeking benefits that was paid shall be returned and the amount equivalent thereto shall be additionally collected (Articles 104 subparag. 1 and 105(1)), and that where a person files a report or makes a false report when applying for unemployment recognition during the period for which he/she wishes to obtain unemployment recognition, where a person files a false report on the contents of reemployment activities during the period subject to unemployment recognition, or where a person files a false report prior to investigation of such unlawful acts, the scope of return may be reduced or exempted from additional collection (Articles 104 subparag. 2 and 3, and 105(2)).

(C) As such, the criteria for the return and additional collection prescribed by the Enforcement Rule of the Employment Insurance Act do not exceed the upper limit of the return and additional collection as prescribed by the Act. In full view of the following: (a) the reduction of or exemption from the amount may be granted; (b) various types of violations are expected to be committed in light of the nature of various subsidies granted under the Employment Insurance Act; and (c) sanctions are necessary to achieve the legislative purpose of the said provision, the provision of the said Enforcement Rule is out of the purport of delegation by mother law; or (c) cannot be deemed contrary to the constitutional principle of excessive

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

Judges

The presiding judge shall be appointed from among the judges;

Judges Jeon Soo-tae

Judges Park Jong-dae

Note tin

1) On June 5, 2012, the Plaintiff sought revocation of the decision of additional collection of KRW 4,438,770 against the Plaintiff, which was sought by the Defendant in the claim of the complaint,

As delineated below, the Defendant’s decision to reduce the amount additionally collected on July 5, 2012 by KRW 2,663,260 as follows.

In order to seek revocation of the decision of additional collection of KRW 2,663,260 on July 5, 2012 remaining after the Plaintiff was reduced.