(영문) 광주지방법원 2014.11.13. 선고 2013구합1799 판결

The Defendant’s disposition of return of KRW 11,642,100 for employment maintenance support payment granted to the Plaintiff on April 8, 2013, and disposition of additional collection of KRW 23,284,200 and disposition of restriction of payment of subsidies (from April 3, 2013 to April 2, 2014) is revoked.

Reasons

1. Basic facts

A. The plaintiff's status

The plaintiff is a person who operates a youth training center (hereinafter referred to as "the instant training center") under the trade name of "C" in Jeonnam-gun B.

B. Receipt of the Plaintiff’s employment maintenance support payment

On October 201, 201, when an adjustment in employment was inevitable due to significant decrease in the operating earnings of the training center, the Plaintiff received employment maintenance support payment of KRW 11,642,100 from the Defendant from December 7, 201 to February 29, 201 (hereinafter referred to as the “period of employment maintenance measures”) as follows.

A person shall be appointed.

C. On April 8, 2013, the Defendant, such as the Defendant’s return of subsidies for retaining employees, received subsidies for retaining employees despite the Plaintiff’s work for the period of employment maintenance measures. The Plaintiff received subsidies for retaining employees despite having offered reduction of the amount of subsidies to D, who are his/her employees, by fraud or other improper means. This is also the following: (a) Article 35 of the former Employment Insurance Act (amended by Act No. 11628, Jan. 23, 2013; hereinafter the same shall apply); (b) Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2415, Oct. 29, 2012; hereinafter the same shall apply); and (c) Article 78 of the Enforcement Rule of the Employment Insurance Act (amended by Presidential Decree No. 24155, Oct. 29, 201; hereinafter the same shall apply); and (d) each of the instant dispositions shall be additionally collected and imposed on 23.413.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The fact that the business suspension targets did not leave the training center in this case and did not leave the training center during the period of employment maintenance measures, and the plaintiff did not operate the training center during that period. However, since D did not leave the training center, it was actually conducted for the business suspension targets, and D did not withdraw from the training center by the plaintiff's recommendation. Thus, the plaintiff did not receive the employment maintenance support payment by fraud or other improper means.

2) A deviation from or abuse of discretionary power

In light of the circumstances that the Plaintiff did not receive the employment maintenance support payment by improper means, each of the instant dispositions is unlawful by abusing and abusing discretion.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Whether each disposition of this case is legitimate;

(a) Whether a legitimate reason exists;

1) Article 21(1) of the former Employment Insurance Act provides that the Minister of Employment and Labor may, as prescribed by Presidential Decree, provide that a business owner whose adjustment is inevitable due to the reduction of the scale of his/her business, the closure or conversion of his/her industrial structure, etc. due to the suspension of business, the replacement of workplace skill development training, human resources, or other measures for employment security of workers, may provide necessary support to the relevant business owner. The main sentence of Article 19(1) of the former Enforcement Decree of the Employment Insurance Act provides that the Minister of Employment and Labor shall, where a business owner whose adjustment is inevitable pursuant to Article 21(1) of the Employment Insurance Act takes measures for employment maintenance to the insured employed in the relevant business and fails to dismiss the insured through the adjustment of employment for one month after the period of the measures for employment maintenance, the employment maintenance subsidy shall be paid. Article 20(1) of the former Enforcement Decree of the Employment Insurance Act provides that the business owner who intends to obtain employment maintenance support shall formulate a plan

In addition to the economic depression, such employment maintenance support payment is an amount paid to support a business owner in cases where a business owner who has become inevitable to adjust his/her surplus labor due to the occurrence of surplus labor in the business due to such factors as business reduction, business rationalization measures, change in production methods, and change in the organization, etc. as well as management crisis such as shortage of raw materials, production volume and quantity reduction, sales reduction, inventory accumulated, etc., and where he/she takes measures to maintain employment such as suspension of business, training, temporary retirement, replacement of human resources, etc. in order to continuously maintain the employment of workers, and takes measures to prevent the actual employment of workers by reducing the business burden of the business owner.

In light of the significance of the employment maintenance support system, the "insured" referred to in the main sentence of Article 19 (1) of the former Enforcement Decree of the Employment Insurance Act refers to the whole insured of the relevant workplace including the insured, not subject to employment maintenance measures. Therefore, even if a business owner conducts an employment adjustment by means of severance only for the part of the entire insured of a workplace during the period of employment maintenance measures, the employment maintenance support payment cannot be paid to all insured persons subject to employment maintenance measures during the period of employment maintenance measures.

(See Supreme Court Decision 2005Du7723 Decided September 29, 2005).

In addition, employment maintenance support payment is paid when a business owner takes employment maintenance measures, such as temporary retirement, in accordance with the employment maintenance plan reported to the Minister of Employment and Labor, and thus, if a business owner fails to take employment maintenance measures, such as temporary retirement, unlike the plan for employment maintenance measures, it

2) As to the non-working of leave

A) In light of the following facts and circumstances, it is reasonable to view that the Plaintiff did not actually take a leave of absence against the persons subject to a leave of absence, contrary to the plan for employment maintenance measures reported during the period of employment maintenance measures, in light of the aforementioned facts and circumstances, which can be acknowledged by comprehensively taking into account the following facts and the written evidence Nos. 4 and 12 (including the number of branch numbers; hereinafter the same shall apply) as well as the overall purport of the pleadings.

(1) Although a person subject to leave of absence was in the instant training center with his will during the period of employment maintenance measures, it is not due to the fact that the Plaintiff’s proposal was accepted by the person subject to leave of absence to continue to pay benefits on the premise that he remains in the instant training center during that period, and that there was an inevitable circumstance of the person subject to leave of absence, such as employment maintenance and difficulty in resolving board and lodging during the period of the measure.

During the period of employment maintenance measures, those subject to leave of absence remain in the instant training center, such as cleaning of the training center, removal of Amera trees in front of the training center, work of attaching vinyl to the training hall windows, work of sending or sending promotional materials in packaging gifts to be sent to schools for public relations of the training center, work of comparing programs with other training centers, work of posting up notice to recruit juvenile instructors who will work in the instant training center on the job site.

However, these works are not carried out voluntarily by the persons subject to temporary retirement, but carried out by the direction of the head of the agency who actually operates the instant training center, and the preparation for the instant training center’s main business activities, such as managing the facilities of the instant training center, etc., which are conducted on the basis of the original duties or on the extension thereof of the persons subject to temporary retirement who work in the instant training center.

③ Some of the subjects of temporary retirement provided labor to the private sector that had found the instant training center during the period of employment maintenance measures, and G re-enters into the instant training center in order to respond to the instant training center for a graduate school curriculum during the period of employment maintenance measures.

B) Ultimately, notwithstanding that the Plaintiff could not receive the employment maintenance support payment because it did not take a leave of absence as it was reported in advance during the period of employment maintenance measures, the Plaintiff applied for the payment of the employment maintenance support payment to the Defendant, which constitutes a case where the employment support payment was received by fraudulent or other illegal means.

3) Regarding D's withdrawals

A) The following facts can be acknowledged in full view of the facts as seen earlier, as well as the respective descriptions of the evidence Nos. 4 through 7, and 9, and the purport of the entire pleadings.

(1) D’s instant training center’s instant training center’s position as the head of the management office after entering the instant training center on April 1, 2011. He/she retired on January 11, 2012 during the period of employment maintenance measures.

(2) Loss of D’s insured status

On February 8, 2012, after D's retirement, the Plaintiff filed a report on the loss of the insured status of D, and reported the reason for the loss to "individual circumstances". After that, the Plaintiff changed the reason for the loss of the insured status of D to "the expiration of the contract term by a corrective report made on March 23, 2012, and changed to "a recommendation made by the company conditions" on February 22, 2013.

On the other hand, at the time of the above corrective report, the Plaintiff submitted both a written confirmation of reason for retirement written in the name of J as documentary evidence and a written employment contract which is from April 10, 201 to January 31, 2012.

D On February 14, 2012, after retirement, submitted an application for recognition of unemployment benefits benefits to the head of the Seoul Regional Employment and Labor Office on February 14, 2012, and applied for the reason of severance as "a recommendation agency due to the corporate conditions".

(3) Details of D’s statement related to the retirement of the instant training center

Among the contents of D's statement made in the course of investigation related to the illegal receipt of the Plaintiff's employment maintenance support payment, the parts related to D's withdrawal from the training center of this case are as follows.

조사 공무원과의 2012. 10. 26.자 전화통화 내용- 퇴직사유는 권고사직이다. 관장 10회사사정이 좋지 않아서 그만둬라고 해서 그만뒀다.근로계약서를 작성한 사실이 없다.○ 조사 공무원과의 2012. 10. 31.자 전화통화 내용- 퇴사사유는 관장 1이 회사 사정 등 애기를 하면서 정규직인데 계약직으로 전환하자라는얘기를 해서 근로조건이 변경되는거니까 그럴 수 없다고 하자, 그럼 그만두라고 해서 그만둔 것이다.O D이 작성한 2012. 10. 31.자 부정수급 조사 관련 근로자 확인서- 이 사건 수련관 입사 당시 정규직이었으나 회사 경영상의 어려움으로 2012, 1. 초에 1년

The head of the agency ordered the conversion of the contract-based public service instructor into the contract-based public service instructor, rejected the disadvantage, such as the reduction of benefits, the change of the position and the source of benefits, and recommended the resignation by 10.The head of the agency did not prepare a labor contract or a written confirmation of reasons for retirement.

B) In light of the following facts and circumstances, it is reasonable to view D during the period of employment maintenance measures not to withdraw from the instant training center upon the expiration of the contract period or the Plaintiff’s recommendation position, rather than to withdraw from the training center upon the expiration of the contract period.

① The Plaintiff’s assertion that D entered the instant training center and entered into an employment contract with a fixed term of contract is consistent with the Plaintiff’s assertion. While there is a written confirmation of reason for retirement written in the name of D, D consistently states that there is no fact that D has written a written confirmation of reason for retirement or a written labor contract under its own name, as I recognized, there is no evidence to acknowledge that D’s written confirmation of reason for retirement was written in this name or that D obtained consent to the preparation of such documents, and there is no evidence to prove that D’s written labor contract written in the name of CD was written directly, while there is no evidence to prove that D’s written written confirmation of reason for retirement [this signature is similar to D’s written signature written in the employment contract, and it appears that D’s written confirmation of reason for retirement was written in the form of D’s signature under the employment contract, and D’s written confirmation of reason for retirement is difficult to recognize that D’s written confirmation of reason for retirement or written labor contract was written separately at the time of signing the employment contract.

Therefore, since the plaintiff entered into an employment contract without setting the contract term with D, it is difficult to view D as retired due to the expiration of the contract term.

② In order to reduce the burden of employee benefits, the head of the agency required D to convert D to a public service consultant for one-year contract worker who is entitled to receive subsidies for the purpose of reducing the burden of employee benefits. Barring special circumstances, D who entered into an employment contract without setting the contract period is able to continue to work without changing the original working conditions, and thus, there was no need to accept I’s request. On the other hand, the Plaintiff was in a situation where D is urgently required to employ a human resources replacing D who is entitled to receive subsidies to reduce the burden of employee benefits, and thus there is sufficient motive to recommend D who does not accept the said request to resign.

③ D consistently stated to the effect that “the request of the Director 1 is not accepted, and thus the recommendation is rejected.” On November 13, 2012, D also stated to the effect that “D, upon being examined by a public official belonging to the Hempo Employment Center, immediately reversed its statement, D would not accept its request, and said D would make a choice to be made only against D.”

④ On November 28, 2013, the Plaintiff reported to the Minister of Employment and Labor on matters concerning the acquisition and loss of the insured status of an employee employed by his/her business as a “business owner” in the Gwangju District Court Branch Branch, as prescribed by Presidential Decree. However, on the ground that he/she falsely prepared and submitted the certificate of severance from employment of his/her employee D, he/she shall be punished by an administrative fine of KRW 1,00,000, and the decision became final and conclusive (Ruling 2013 and 225).

C) Ultimately, since the Plaintiff had recommended D during the period of employment maintenance measures, the Plaintiff applied for the payment of the employment maintenance support payment after the withdrawal of D, notwithstanding the fact that the Plaintiff could not receive the employment maintenance support payment for all those who were temporarily retired during the period of employment maintenance measures. This constitutes a case where the employment maintenance support payment was received by fraudulent or other illegal means.

(b) whether the discretionary authority has been exceeded and abused;

① In light of the following: (a) eradicating a business owner’s illegal act that abused the employment insurance system by unlawful means; (b) the need for the public interest in protecting the finances of employment insurance; and (c) the illegal receipt of employment support payment is a serious act that seriously undermines the foundation and order of the employment insurance system; and (b) the Plaintiff received employment support payment by fraudulent or other illegal means; (c) the amount is the total of KRW 11,642,100; and (d) each of the instant dispositions was made in accordance with the criteria for disposition prescribed by the former Employment Insurance Act and subordinate statutes, it is difficult to deem that each of the instant dispositions was a deviation

4. Conclusion

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