(영문) 서울행정법원 2012.7.5. 선고 2012구합11829 판결

The Defendant’s disposition of restricting the payment of unemployment benefits, ordering the return of unemployment benefits, and imposing additional collection against the Plaintiff on May 9, 2011 is revoked.

Reasons

1. Details of the disposition;

A. On January 31, 2011, when the Plaintiff retired from employment in Company B, the Plaintiff applied for recognition of eligibility for employment insurance to the Defendant on February 11, 2011. Upon receiving the Defendant’s eligibility for benefits of KRW 90,000 for a fixed number of wage days, KRW 440,00 for a daily amount of benefit, and KRW 1,40,000 for unemployment recognition, the Plaintiff received job-seeking benefits from the Defendant as follows.

A person shall be appointed.

B. On April 7, 2011, the Defendant received information about the Plaintiff’s employment to C as of March 3, 2011 and investigated the fact thereof, and on May 9, 2011, issued a restriction on payment of unemployment benefits pursuant to Articles 61 and 62 of the Employment Insurance Act (amended by Act No. 10895, Jul. 21, 201; hereinafter the same) and issued an order to return KRW 1,120,000 and a disposition to additionally collect KRW 920,000 for the reason that the Plaintiff received job-seeking benefits without reporting employment to the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Around March 2011, the Plaintiff had attempted to work free of charge upon the request of Ma-dong D running C, and had not been employed in C. A deposit of KRW 2,50,000 to the Plaintiff’s head of the Tong to assist the Plaintiff who was considered as a enrollment fee at the time of March 24, 2011, but the Plaintiff was also aware of the deposit payment last. Therefore, the instant disposition based on the premise that the Plaintiff was employed for the purpose of wages in C 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 "it shall be in a state of being employed (including operating a for-profit business) despite having the intention and ability to engage in employment, one of the requirements for receiving job-seeking benefits." Article 61 of the same Act provides that "Any person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date when he/she received, or attempted to receive, such benefits (paragraph (1)) or from the date when he/she received, or attempted to receive, unemployment benefits by fraud or other improper means, if he/she falls under any of the causes prescribed by Presidential Decree, such as failure to report under Article 47(1) or false reports, no job-seeking benefits shall be paid (Paragraph (2)) for the period subject to verification of unemployment, and Article 62(1) of the same 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 job

On the other hand, "false or other unlawful means" generally refers to any unlawful act committed by a person who is not eligible for benefits by pretending the eligibility for benefits, or concealing the fact of employment or the occurrence of income, and such act constitutes a case where a person with wage and salary income fails to fulfill his duty to report (see Supreme Court Decision 2002Du7494, Sept. 23, 2003).

(2) On March 25, 2011, the following circumstances: ① the Plaintiff visited the Defendant on March 201, 201 and submitted an application for the recognition of unemployment (No. 9 certificate) to recognize the overall purport of the arguments at KRW 10,00,00, KRW 20,000, KRW 10,000,000, KRW 30,000,000,000, and KRW 10,000,000,000,000: 3,000,000,000,000: 3,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000 won.

(3) Therefore, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

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.