(영문) 대전고등법원 2011.9.22. 선고 2011누1120 판결

2. The Defendant’s revocation of the determination of the amount of the employment insurance site for each shutdown allowance subsidy as of March 26, 2009 and November 25, 2009 against the Plaintiff.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and therefore, it cites it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter referred to as "the same as the judgment of the court of first instance").

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The same shall apply to the judgment of the first instance.

B. Relevant statutes

The same shall apply to the judgment of the first instance.

C. Determination

1) According to Article 21(1) of the former Employment Insurance Act (amended by Act No. 990, Jan. 27, 2010; hereinafter “Act”), and Article 19(1) of the Enforcement Decree of the Act (amended by Presidential Decree No. 22269, Jul. 12, 2010); where a business owner whose adjustment of employment is inevitable due to the occurrence of surplus labor power in the company, such as business fluctuations, business reduction due to industrial structure changes, closure or conversion of business, etc., fails to dismiss the insured through the adjustment of employment during the period of employment maintenance measures, the amount paid to support the business owner. Thus, in the case of severance irrelevant to the “in inevitable situation of employment adjustment due to the occurrence of surplus labor force,” such circumstances cannot be deemed as a ground for retirement or disciplinary action for expiration of the retirement age, etc., and even if there exists a reason or free will of workers on the part of the company, such circumstances cannot be deemed as a ground for payment of wages.

(ii) the facts of recognition

① The Plaintiff Company had aimed at cultivating human resources, with its individual achievements below a certain level of demand and low potential to hold for future growth, and has implemented a retirement program for his low-quality members belonging to the degree of lower 10% in the company. Accordingly, the recommendation director was conducted on December 31, 2001 every year, and four persons in 2001, four persons in 2002, four persons in 2003, two persons in Geumsan factory in 2001, two persons in 202, two persons in 203, two persons in 203, two persons in 204, two persons in 2004, two persons in 205, and one person in 207, and two persons in 207 were selected as persons subject to the above retirement program, and retired from his office according to the recommendation of the company.

② In 208, the Plaintiff Company assessed 30 persons to be withdrawn according to the above low-quality withdrawal program, and selected three persons, including A, in the case of Daejeon Factory, and the officers in charge of personnel management of Daejeon Factory conducted an interview with three persons, including A, and explained the purpose and evaluation of the aforementioned program.

③ As of December 31, 2008, upon accepting the recommendation of the company for recommendation, A et al. submitted each of the private employees (for reasons of resignation, A is a recommendation for dismissal, B is a personal situation, and C is a contract agent upon the recommendation of the company, and C is a resignation from the contract agent). The Plaintiff Company paid A et al. additional consolation benefits for 15 months of basic salary in addition to normal retirement allowances.

【Ground for Recognition: Facts without dispute; evidence Nos. 2, 3-1, 2, 4, 8, and 9-1, 2, 3, 2-2, 4, 5, and 6; the statements of evidence No. 2-2, 4, 5, and 6; the purport of the whole pleadings and arguments of witnesses of the first instance court】

3) In light of the fact that the recommendation agency based on the withdrawal program of the Plaintiff Company was regularly conducted every year at the end of 7 to 8 years as a means of making workers under the ability to perform their duties by setting up their workers at a certain level and maintaining their ability to perform their duties, not by force, but by accepting and submitting the recommendation agency based on the above withdrawal program at the end of 7 to 8 years, the number of workers shall not be considered to be a means of reducing the number of workers, regardless of the fact that the recommendation agency based on the above withdrawal program is merely an example of annual events consisting of the organization through the reorganization of human resources and the promotion of the improvement of the work ability of the members.

Therefore, even if the Plaintiff retired from the position of recommendation agency according to the above withdrawal program during the period of employment maintenance measures, such circumstance cannot be deemed as a ground for employment maintenance support payment. If such circumstance is deemed as a ground for employment maintenance support payment, the Plaintiff Company provided the above withdrawal program on a regular basis for several years, and if withdrawal was made during the period of employment maintenance measures, the payment of employment maintenance support payment was not made, but is not made. If the period of employment maintenance support payment is not for the period of employment maintenance measures, the payment of employment maintenance support payment would be made. Ultimately, the result of employment maintenance support payment would vary depending on whether the period of employment maintenance support for the withdrawal program overlaps with the period of employment maintenance measures, which is unfair contrary to the principle of equity.

3. Conclusion

Therefore, the plaintiff's claim should be accepted on the grounds of its reasoning. Since the judgment of the first instance is unfair on the grounds of its conclusion, it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim.