2013Nu352 Revocation of revocation of a decision to recover unjust enrichment for improving the employment environment of small and medium enterprises

A Stock Company

The Administrator of Busan Regional Employment and Labor Agency

Busan District Court Decision 2012Guhap4051 Decided January 11, 2013

April 19, 2013

May 10, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s decision to recover subsidies to improve the employment environment of small and medium enterprises on July 25, 201 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. The issues of the instant case and the judgment of the first instance court

A. The issues of the instant case

The key issue of the instant case is whether the Plaintiff, who received subsidies to improve the employment environment of small and medium enterprises, left B through the adjustment of employment on September 30, 2010 during the period of prevention of depreciation.

B. Judgment of the court of the first instance

On October 8, 2010, immediately after the resignation of B, the court of first instance: (i) the Plaintiff hired C and then hired D on October 8, 2010; (ii) there is no reason to employ substitute staff if B was recommended due to the reduction of the quantity; (iii) the Plaintiff’s benefits of C after B’s resignation are the same as B’s wage reduction; (iv) the Plaintiff’s resignation for the purpose of wage reduction is not visible; (iii) the lectures and districts among the items constituting the Plaintiff’s sales constitute brokerage or subcontracting and only the “PPma” produced by the Plaintiff; (iii) it is difficult to conclude that the Plaintiff’s annual sales for 2010,000 of the PPma, which was lower than that of the year 209; and (v) it is difficult to conclude that the Plaintiff’s allegation that the Plaintiff’s retirement benefits had been paid to the Plaintiff before the withdrawal of the Plaintiff’s unemployment benefits for the period of 50 days prior to the withdrawal of the Plaintiff’s resignation.

2. The judgment of this Court and the citing the judgment of the first instance court

A. The judgment of this Court

According to the statements in Eul's Evidence Nos. 2 through 4, 6, 7, and 26 and witness G of the first instance court, the plaintiff's accounting personnel F made a statement to the effect that "F had recommended B because there are many days in telephone conversations with the public officials belonging to the defendant on October 14, 2010," and B entered the defendant on October 25, 2010 as "the grounds for departure from employment due to the reduction of the quantity". The plaintiff prepared a written confirmation of departure from employment of the insured to the same effect on March 24, 201, and made a statement to the effect that "B was recommended to reduce the daily volume" in telephone conversations with the public officials belonging to the defendant, and the plaintiff's representative director stated to the same effect as the plaintiff's E can be recognized respectively.

However, according to Gap evidence Nos. 15 and Eul evidence Nos. 17, it stated that "B retired at his/her own request to be a partner of the defendant's office on August 29, 201, and requested the F to receive unemployment benefits as the case where the above business was no longer operated," and that H also stated to the same purport, and that "B retired from the defendant's office on September 15, 201, but requested the company to find the reason for resignation and to take the reason for departure from office after his/her resignation and to treat it as such."

In the above facts, Gap evidence Nos. 6, 18, Eul evidence Nos. 19, and Eul evidence Nos. 19, and Eul evidence Nos. 25 and testimony by witnesses of the first instance court, that is, Eul submitted to the plaintiff a resignation statement stating that "B shall resign due to personal circumstances" around June 2010 (the '2001' stated in the above resignation seems to be the '2010'). After that, around August 2010, although the plaintiff's PPma sales decrease around September 2010, which was prior to B's resignation, the sales increase again in around September 2009, which was more than the sales amount, around September 2009, Eul was immediately recruited after B's resignation, and around October 2010, Eul submitted a resignation statement that "the plaintiff's PPma sales and resignation due to personal reasons" to the plaintiff, the plaintiff's request and the plaintiff's retirement certificate No. 1000 were insufficient to recognize the plaintiff's eligibility No. 1.

Therefore, the defendant's disposition of this case based on the premise that the plaintiff rejected B's recommendation, is unlawful, and the judgment of the court of first instance is justified.

B. Quotation of judgment of the court of first instance

The court's explanation on the instant case is the same as the part concerning the reasoning of the judgment of the first instance except for the addition of the judgment of the above paragraph (a). Thus, this Court cites it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of

3. Conclusion

Therefore, the conclusion of the first instance judgment is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and the highest judge;

Judges Lao Young-gu

Judges Kim Gin-ok