2014Guhap1025 Revocation of a disposition, etc. to refuse to pay extension subsidies for elderly employment.

News E.S. News E.C.

The Administrator of Busan Regional Employment and Labor Agency

August 29, 2014

September 26, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On April 4, 2013, the Defendant’s disposition of site wages for extension of employment of elderly citizens, return of 68,609,830 won principal for the extended area of employment, and additional collection of KRW 137.219,660 for one year (from April 4, 2013 to April 3, 2014), and disposition of restricting payment of various subsidies and incentives for one year (from April 4, 2013 to April 3, 2014) shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a corporation established and incorporated with the primary purpose of security business, etc. However, on the ground that the retirement age of the workplace was changed from 60 to 65 years of age, the Plaintiff applied for subsidies for promotion of employment of the aged to the Defendant for subsidies for KRW 82,284,010 in total from 3rd quarter of 2008 to 3rd quarter of 2012.

A person shall be appointed.

C. On January 17, 2013, the Plaintiff filed an application with the Defendant for the payment of KRW 4.2 million of the subsidies for promotion of employment of the elderly in the quarter of April 2012. Accordingly, the Defendant, following an investigation by the Plaintiff, issued an order to the Plaintiff for the payment of KRW 4.2 million, on the ground that “the Plaintiff constitutes contractual workers whose retirement age has been extended.” The reported workers (hereinafter referred to as “the instant workers”) constitute those who are not subject to the rules of employment, and as if the Plaintiff were to extend retirement age even if they did not apply the actual retirement age, the Plaintiff revised the rules of employment, submitted the rules of employment, and denied the payment of the subsidies.” On April 4, 2013, the Plaintiff paid the amount of the subsidies for promotion of employment of the elderly in the quarter of April 2012, and the total amount of the subsidies already paid to the Plaintiff KRW 68,609,830 (Article 107(1) of the Employment Insurance Act) for the first quarter from January 1, 20101 to December 36, 2014 (hereinafter).

D. The Plaintiff appealed and filed an administrative appeal with the Central Administrative Appeals Commission on June 12, 2013, but was dismissed on February 11, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, 4, Eul evidence 1 and 2 (including various numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) The instant workers have formally prepared an employment contract each year, but all of them are continuously employed for more than four to six years, and they are in fact with no fixed period of time. Even if the instant workers are fixed-term workers not subject to the statutory retirement age, they have dealt with an employment contract under the premise that the Plaintiff’s provision on retirement age under the rules of employment applies to the instant workers, and thus, the Plaintiff cannot be deemed to have received unfair payment for receiving subsidies for extension of employment of the instant elderly workers.

2) Even if the Plaintiff received the subsidy for extension of employment of the aged, considering that the amount of return and additional collection increased as the Defendant’s erroneous determination continues for a long time, the instant disposition is excessively harsh.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On September 27, 2007, the Plaintiff enacted the rules of employment. The main contents are as follows.

A person employed as an employee under Article 11 (Labor Contract) shall be deemed to have consented to working conditions in accordance with these Rules, and the employment contract of the employee under Article 12 (Period of Employment Contract) shall be signed and sealed in writing, and shall be concluded in writing. The period of employment contract of the employee under Article 12 (Period of Employment Contract) may be a new or renewed employment contract by agreement between the company and the employee in the following cases:

2) On July 25, 2008, the Plaintiff changed the retirement age under Article 50 of the Rules of Employment to 65 years, and reported the amendment of the Rules of Employment to the Defendant on July 28, 2008.

3) Most of the Plaintiff’s workers, including the instant workers, have prepared a one-year employment contract between the Plaintiff and the Plaintiff. During the Defendant’s investigation into the Plaintiff, the Defendant stated that “1C of the instant workers was newly prepared a one-year contract between the Plaintiff and the Plaintiff, received retirement pay every year, and that he was retired from the company at the time when the contract term expires, and that “the Plaintiff was retired from the company.” ② He stated that “F was a one-year contract worker with the Plaintiff, who was employed until the retirement age as an employee in the Plaintiff’s one-year employment contract, and that he was not guaranteed the retirement age.” In fact, the Defendant stated that “B was dismissed from the Plaintiff’s resignation recommendation.”

4) From among the instant workers, C (N) retired from the Plaintiff on July 31, 201, before reaching the age of 65 under the amended rules of employment, on the ground that “the expiry of the contract,” which was earlier than the retirement age of 65 under the amended rules of employment. B (N) retired from the Plaintiff on September 30, 2012, before reaching the age of 65 under the amended rules of employment, and J (P) retired from the Plaintiff on the ground that “the expiration of the contract,” which was earlier than the retirement age of 65 under the amended rules of employment.

5) Meanwhile, according to the Defendant’s report on the loss of each insured worker and the Defendant’s certificate of severance from employment insurance, etc., the Plaintiff’s worker (not the instant worker), and Qu (R) retired from the Plaintiff on the ground that the Plaintiff reached the retirement age on June 1, 2007, before the Plaintiff enacted the rules of employment at 60 years old or changed the retirement age to 65 years old. At that time, Q’s age was 65 years old, and Q (T) retired from the Plaintiff on the ground that it reached the retirement age on June 30, 2007, before the Plaintiff’s rules of employment were enacted. At that time, S (T) retired from the Plaintiff on the ground that it reached the retirement age on June 30, 207, before the enactment

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 4, Eul evidence Nos. 3, 4, and 5, the purport of the whole pleadings

D. Determination

1) Taking full account of the facts acknowledged earlier and the following circumstances revealed by comprehensively taking account of the evidence as seen earlier, it is reasonable to view that the Plaintiff’s application for extension of employment of the aged constitutes “a person who received support by fraud or other improper means” under Article 35(1) of the Employment Insurance Act, etc. for the reason that the Plaintiff was 60 years old but was 65 years old.

① The instant workers are at least 60 years of age, and most of the Plaintiff’s workers, including the instant workers, have entered into a one-year employment contract with their old employment.

It seems that parking management, housing management, facility security, cleaning services, etc. have been engaged in service business.

② From among the instant workers, C and F worked as a one-year contract worker rather than a full-time employee in the course of the Defendant’s investigation with the Plaintiff, and the employer was not guaranteed employment until the retirement age, and the employer was unaware of whether the retirement age regulations exist, or was unaware of the retired employee. In addition, according to the written ruling of the Central Administrative Appeals Commission on the instant disposition, the Plaintiff’s U and E, one of the instant workers, also stated that the Plaintiff’s current employees, made the statement to the same effect during the instant investigation.

③ After two years of the establishment of the Plaintiff, the Plaintiff enacted the rules of employment with the retirement age of 60 years and revised the retirement age to 65 years thereafter, and filed an application for subsidies for extension of employment of the aged at the same time with the Defendant filed a report on the change of the retirement age to 65 years thereafter. However, among the Plaintiff’s employees, there were two years of employment before the enactment of the rules of employment of the aged 60 years of age: (a) the retired employee had already worked before the enactment of the rules of employment of the aged 65 years of age; (b) Q and S were submitted to the court for retired employee on the ground of “the retirement age already worked before the enactment of the rules of employment of the aged 65 years of age; (c) however, there is no evidence to acknowledge this as to the purport that the Plaintiff’s specific reason for retirement was only voluntarily input by the

4) In full view of the content and form of employment in the employment contract of certain workers, C and F, the timing and age of retired workers before and after the enactment and amendment of the employment rules, and the details of the specific reason for retirement reported to the Defendant, etc., the Plaintiff cannot be deemed to have been applying the retirement age provision to the instant workers by treating them as fixed-term workers, regardless of their retirement age, by treating them as fixed-term workers, who prepared the employment contract for one year among the employees under his/her command, regardless of their retirement age. On the other hand, it is difficult to view that there was the substance of “extension of retirement age” in light of the circumstances where the employment rules set at 65 years old prior to the enactment and amendment of the employment rules set at 60 years old

2) Furthermore, the amount ordering the return and additional collection in the instant disposition, and the period for restricting the payment of subsidies for employment security activities is in accordance with the standards under the relevant statutes, such as Article 35 of the Employment Insurance Act, Article 56 of the Enforcement Decree of the same Act, and Article 78 of the Enforcement Rule of the same Act. Even in consideration of the circumstances asserted by the Plaintiff, the amount ordering the return and additional collection,

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Jeon Soo-hoon

Judges Lee Jae-ho

A person shall be appointed.

A person shall be appointed.