(영문) 서울행정법원 2011.5.4. 선고 2010구합46241 판결

A. From October 20, 1983 to December 31, 2010, the Plaintiff served as a street cleaner in the cleaning administration division of the Seoul Metropolitan Government B-gu Office (hereinafter “B-gu Office”) from October 20, 1983 to December 31, 201.

B. According to the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 16705, Feb. 9, 200) as amended on Oct. 1, 198, as well as the case of employees employed by the State or a local government directly by the State or a local government, the Employment Insurance Act is naturally applicable from Jan. 1, 200. After receiving a list of the insured workers from each department, including cleaning administration, the head of the Gu office submitted the list of the insured workers, and the head of B reported the acquisition of the insured status for 190 street cleaners employed by the Defendant on Feb. 24, 200, according to the above list prepared by the general secretary general, the head of the Gu office reported the acquisition of the insured status for 190 street cleaners employed by the Plaintiff, etc., and paid the employment insurance premium of the Plaintiff, etc. to the Korea Labor Welfare Corporation after collecting the employment insurance premium in a lump

C. On May 24, 2010, the head of B confirmed the omission of a report on the insured status of the Plaintiff’s employment insurance against the Defendant on May 24, 2010, the head of B requested on February 24, 2010 that “the date of acquisition of the Plaintiff’s employment insurance should be retroactively recognized as of January 1, 200, as well as the street cleaners belonging to another Gu office, which reported the acquisition of the insured status of the employment insurance by attaching evidentiary documents to the Defendant.” However, on May 31, 2010, the head of B confirmed that the Plaintiff’s employment insurance acquisition of the insured status of the Plaintiff was confirmed as of May 25, 2010 pursuant to Article 50(5) of the Employment Insurance Act.”

D. On August 3, 2010, the head of B submitted to the Defendant a report demanding that the Plaintiff recognize the insured status of the Plaintiff’s employment insurance retroactively on January 1, 2000. Accordingly, on August 5, 2010, the Defendant notified the Plaintiff of the date of reporting the acquisition of the insured status of the employment insurance on August 3, 2010, that the Plaintiff’s date of acquisition of the insured status of the Plaintiff’s employment insurance is August 4, 2007. (hereinafter as follows, the Plaintiff’s date of acquisition of the insured status of the Plaintiff’s employment insurance was changed to the date of acquisition on May 22, 2007.)

E. On August 12, 2010, the Plaintiff filed a request to review the instant disposition with an employment insurance examiner pursuant to Article 90 of the Employment Insurance Act. However, on October 8 of the same year, the Plaintiff’s acquisition date of the Plaintiff’s employment insurance can be deemed as “ May 22, 2007” but it cannot be deemed as “ January 1, 200.”

F. On October 19, 2010, the Defendant notified the Plaintiff on October 19, 201, that the date of acquisition of insured status for employment insurance was “the date of acquisition of insured status for employment insurance” in accordance with the purport of the above determination by the employment insurance examiner.

[Ground for Recognition: There is no dispute, Gap evidence 1, 3 through 10, Gap evidence 2-1 through 4, Eul evidence 1 and 2, Eul witness's partial testimony, and the purport of whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

B Even though the head of the Gu reported to the Defendant on February 24, 200 the acquisition of insured status for 190 street cleaners belonging to the Gu Office, the Plaintiff did not notify the Plaintiff of the acquisition of insured status under Article 15(4) of the Employment Insurance Act, and thus, the Plaintiff was unaware of the omission of the report on insured status at the time of the Plaintiff, and the Plaintiff’s failure to recognize insured status on January 1, 200 in calculating the insured period, which serves as the basis for calculating job-seeking benefits, even if the Plaintiff paid the employment insurance premium, is against the principle of equity, and thus, the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Article 13 of the Employment Insurance Act provides that, in principle, an insured worker shall acquire insured status on the date when the insured worker is employed in the business to which the same Act applies; however, Article 10 of the same Act provides that an insured worker shall report the acquisition or loss of insured status to the Minister of Employment and Labor on the date when the insured worker becomes covered; Article 15(1) of the same Act provides that an employer shall report the acquisition or loss of insured status to the relevant employee; Article 15(3) of the same Act provides that an employee may report the insured status to the Minister of Employment and Labor if the employer fails to report the insured status under paragraph (1) of the same Article; Article 50(5) of the same Act provides that, in calculating the fixed benefit payment days for which job-seeking benefits can be paid, if three years have passed retroactively from the date when the insured worker becomes insured under Article 17 of the same Act was verified, the insured period shall be calculated by deeming the insured status to have been acquired on the date when the insured worker becomes insured under Article 17(2) of the same Act.

In full view of the aforementioned relevant provisions, the insured of an employment insurance company shall naturally acquire the insured status as a matter of course on the date it is employed by the workplace to which the Employment Insurance Act applies or on the date it becomes subject to the Employment Insurance Act. However, as long as the insured fails to report the acquisition of the insured status or to request verification of the acquisition of the insured status, it is difficult for the Minister of Employment and Labor to collect or collect data on the acquisition of the insured status or the timing of acquisition. On the other hand, regardless of whether the person who acquired the insured status paid the employment insurance premium, if the insured satisfies the requirements for payment of job-seeking benefits. Accordingly, Article 50(5) of the Employment Insurance Act provides that in order to prevent difficulties in collecting the employment insurance premium by making a late report to the Minister of Employment and Labor after the insured’s acquisition of the insured status, the extinctive prescription period of the right to collect the employment insurance premium shall be calculated retroactively by taking into account that the date when the insured status acquired the insured status was confirmed, and that the period should be calculated based on the calculation of the job-seeking benefits.

In light of the contents and legislative intent of Articles 13, 15, and 50(5) of the Employment Insurance Act, when an employee excluded from Article 10 of the Employment Insurance Act is subject to the Employment Insurance Act, he/she naturally acquires the insured status on the corresponding day regardless of the report or confirmation of the acquisition of the insured status, and the provision on the report or confirmation of the acquisition of the insured status aims to prevent disputes over the acquisition of the insured status and the collection of the acquisition time or insurance premium, etc., and Article 50(5) of the Employment Insurance Act appears to be aimed at limiting the insured period if it is unclear that the acquisition time of the insured is impossible due to the absence of the report or confirmation of the acquisition of the insured status due to the reasons on the part of the insured, the insured period, which serves as the basis for calculating job-seeking benefits, cannot be deemed to have been limited by Article 15(2) or 17(1) of the same Act.

2) According to the above evidence, as seen earlier, the National Employment Insurance Act was naturally applied from January 1, 200 to a worker engaged in a business directly conducted by the State or a local government pursuant to the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 16705, Feb. 9, 200) as amended on Oct. 1, 1998, and as a matter of course, the head of B reported the acquisition of employment insurance for more than 190 street cleaners belonging to B B office to the Defendant on Feb. 24, 200, according to the above list prepared by the general manager, the head of B office reported the acquisition of employment insurance for more than 190 street cleaners belonging to B office, etc. from that time to the Korea Labor Welfare Corporation after collecting the employment insurance premiums of the Plaintiff, etc., and the employment insurance for 248 insured workers belonging to B office was established on Feb. 1, 200 and notified as a result of the report (amended by Presidential Decree No. 21500, Jan. 1, 2001).

According to the above facts, the plaintiff acquired the insured status of employment insurance as a matter of course on January 1, 200, and even if the head of B omitted the plaintiff at the time of reporting the acquisition of insured status of employment insurance to the defendant on February 24, 2000, it would not cause any trouble in collecting insurance premiums, etc., as well as it would not be reasonable to expect the plaintiff to report under Article 15 (2) of the Employment Insurance Act as of February 24, 200 because there is no way to confirm whether the part related to the plaintiff was omitted at the time of reporting the acquisition of insured status of employment insurance to the defendant on February 24, 200, and it would be reasonable to view that there was any circumstance that could not cause any negligence to the plaintiff due to the failure to report, etc. as of February 24, 200. Therefore, in calculating the insured period that serves as the basis for calculating job-seeking benefits, the insured period cannot be restricted pursuant to Article 50 (5) of the Employment Insurance Act, and should be calculated from January

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.