2010Guu18321 Revocation of the claim for the return of the employment maintenance support payment by the respondent

A

The Head of the Seoul Regional Labor Office Seoul Western Site

August 20, 2010

September 10, 2010

1. The plaintiff's claim is dismissed.

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

The defendant's disposition to recover KRW 10,306,650 against the plaintiff on December 15, 2008 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, from September 1, 2006 to December 31 of the same year, who was engaged in the advertisement business in the name of "C" on the first floor of Yongsan-gu Seoul Metropolitan Government building B, set up a plan for employment maintenance for eight persons, such as D and E, as shown below, and reported it to the Defendant, and received KRW 10,306,650 from the Defendant as employment maintenance support payment for the above eight persons during the above period.

[Attachment]

A person shall be appointed.

B. The defendant, on November 30, 2006 when the plaintiff was under the above employment maintenance measure, violated the plan of employment maintenance measures by retiring K as the plaintiff's employment insured worker due to the reason of the company's circumstances (corporate restructuring due to business deterioration) (hereinafter "disposition of this case"), Article 26-5 (1) of the Employment Insurance Act (amended by Act No. 8135 of Dec. 30, 2006; hereinafter the same shall apply) and Articles 17 (1) and 35-4 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19806 of Dec. 29, 2006; hereinafter the same shall apply) and notified the plaintiff (hereinafter "disposition of this case").

[Reasons for Recognition] Class B 1, 2, 9, and Eul 10-3

2. The assertion and judgment

A. The plaintiff's assertion

K worked for the Plaintiff’s Operation C, and voluntarily retired from Korea on November 1, 2006. Accordingly, around December 20, 2006, the Plaintiff reported the loss of insured status, such as employment insurance, national pension, etc. on the ground that “K voluntarily retired from Korea on November 30, 2006.” Therefore, the instant disposition should be revoked on the premise that the Plaintiff was found to have retired from Korea on November 30, 2006 due to the Plaintiff’s other corporate circumstances (i.e., restructuring due to bad management).

(b) Related statutes;

Employment Insurance Act (amended by Act No. 8135 of Dec. 30, 2006)

Article 16 (Support for Employment Adjustment)

(1) The Minister of Labor may, under the conditions as prescribed by the Presidential Decree, provide necessary support to a business owner who has become inevitable to adjust his/her employment due to the business fluctuations, the reduction of the scale of his/her business, the discontinuation or conversion of his/her business, etc. due to the suspension of business, the implementation of workplace skill development training necessary for vocational conversion, the relocation of human resources,

Article 26-5 (Restriction, etc. on Support due to Illegal Acts)

(1) The Minister of Labor may order a person who has received or intends to receive support for employment security and vocational skills development programs under the provisions of this Chapter by fraud or other improper means to restrict such support or to return the support already provided, as prescribed by Presidential Decree.

Article 17 (Persons Eligible for Employment Insurance Support Payment) Article 17 (Persons Eligible for Employment Insurance Payment)

(1) The Minister of Labor shall grant support (hereinafter referred to as “support support payment”) to a business owner whose adjustment in employment has been inevitable under Article 16(1) of the Act, where he does not dismiss the insured through an adjustment in employment during the relevant employment period (excluding the case of subparagraphs 6 and 7) by taking the measures (hereinafter referred to as “employment maintenance measures”) falling under any of the following subparagraphs against the insured employed in the business (excluding daily employed workers, those who have been notified of dismissal under Article 32 of the Labor Standards Act, and those who are expected to retire on the recommendation of the business owner for managerial reasons; hereinafter the same shall apply in this Chapter):

5. Where he grants paid or unpaid leave for not less than one month. Article 35-4 (Restriction on Payment of Subsidies, etc. Due to Dishonest Acts)

(1) The Minister of Labor shall not, pursuant to Article 26-5 (1) of the Act, pay the remainder of the subsidy, the cost of workplace skill development training, or the cost of subsidies that the person received or intended to receive, the following subsidies or the cost of workplace skill development training by fraud or other improper means, and shall order the person to refund the subsidy and the cost of workplace skill development training already

1. Determination of the subsidy or the grant under the provisions of Articles 15-2 through 15-6, 17, 18, 19-2, 20, 22, 22-2 through 22-5, 23, 23-2 through 23-4, 23-6, 23-7, 24 and 35-3 shall be made;

(1) In full view of the aforementioned evidence, Gap evidence Nos. 2-7, 12-16, 18-22, 27, 30, 34, and Eul evidence Nos. 3-8, the whole purport of the pleadings can be acknowledged. In light of the above evidence, the above evidence Nos. 24, 25, and Eul evidence Nos. 10-9 are hard to believe.

(A) On August 31, 2006, the Plaintiff reported to the Defendant that he would take employment maintenance measures (on September 1, 2006, until December 31, 2006) as seen earlier on the grounds of a decrease in sales due to a decrease in the volume of work at the main trading place, and received KRW 10,306,650 from the Defendant for employment maintenance support payment.

(B) On June 1, 200, K obtained the qualification for the four insured, who was employed in C, and retired from C on November 30, 2006. Accordingly, C’s wage payment records for December 2006 did not appear in K, but in K’s wage payment records for wage and salary income, it appears that K did not have any wage and salary income for December 2006.

(C) On December 20, 2006, the Plaintiff reported the disqualification of K such as employment insurance, national pension, etc. on or around December 20, 2006, entered the classification code of employment insurance into “15 (other personal conditions)” without specifically stating the grounds for loss.

(D) On February 13, 2007, K submitted an application for recognition of eligibility for employment insurance benefits to the head of the Ansan-gu Regional Labor Office on November 30, 2006 to the Administrator of the National Labor Administration in the Republic of Korea, for the reason of industrial accident (cerebr blood) and payment of unemployment benefits. The head of the Ansan-gu Office confirmed that K retired from employment on the ground of "corporate restructuring due to industrial accident" around that time, and recognized that K was eligible for unemployment benefits until September 17, 2007.

(E) Meanwhile, on the other hand, the Plaintiff revised K’s wage in December 2006 on the receipt for withholding tax on wage and salary income paid to K, and revised the Plaintiff’s report on wage and salary income in accordance with the above provision. On February 21, 2007, the Plaintiff submitted a request for correction of the reason for loss of employment insurance to request the correction of the date of retirement to December 31, 2006, as the reason for loss of employment insurance was the reason for loss to be reported to K as stated in the above Paragraph (c). Upon the above revised report, only the reason for loss of K’s qualification under the employment insurance classification code 25 was changed to the retirement due to other corporate circumstances (corporate restructuring).

(F) On March 2, 2007, when the Plaintiff reported deprivation of qualification, such as employment insurance for K and national pension, on March 2, 2007, the Plaintiff reported deprivation of qualification by stating the date of deprivation of qualification as ‘205, 12, 31.', ‘management dismissal', and ‘23'. The difference between the date of deprivation of qualification reported and the date of deprivation of qualification newly reported is so big that it is not reflected in employment insurance and national pension acquisition information, and the information on loss of qualification was reflected as above as reported.

(G) On November 30, 2006, and November 30, 2006, the Defendant rendered the instant disposition on the ground that K had retired from office on the ground of “corporate restructuring due to business deterioration” based on the employment insurance for K and national pension acquisition information.

(2) According to Article 17(1) of the Enforcement Decree of the Employment Insurance Act, where a business owner whose adjustment is inevitable, takes employment measures such as granting an employee who is employed in the business, such as paying or unpaid leave for at least one month, and does not dismiss the insured through employment adjustment during the pertinent period of employment maintenance measures, it shall be eligible for employment maintenance support payment. In full view of the above facts, the Plaintiff’s severance from K, who is a C employee of the Plaintiff’s operation, on November 30, 2006, on the ground of “corporate restructuring due to business deterioration,” the Plaintiff shall not be eligible for employment adjustment support payment under the above provision.

Therefore, the instant disposition ordering the return of the subsidy by deeming that the Plaintiff, who is not a person eligible for the payment of the subsidy for employment adjustment, falls under the case of receiving the subsidy by improper means is lawful. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

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

The presiding judge, deputy judge and assistant judge

Judges Jin-law

Judges Choi Young-hoon