(영문) 대전고등법원 청주재판부 2018.1.10. 선고 2017누3107 판결

The judgment of the first instance court shall be revoked. The defendant's order to return the employment maintenance support payment granted to the plaintiff on September 19, 2016 and the disposition of additional collection and restriction of payment shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff’s sales in November 2015, where 43 workers work as a company that mainly manufactures food manufacturing and processing business, etc., reduced considerably compared to the previous sales in November 2015, and the suspension of operation was inevitable.

B. On December 10, 2015, the Plaintiff submitted a written report on a plan for employment maintenance measures (temporary retirement) to the Defendant (hereinafter “the first temporary retirement”) with respect to 35 employees from December 11, 2015 to January 10, 2016, in order to overcome business difficulties by receiving public support without reducing the number of employees.

C. On January 20, 2016, the Plaintiff submitted a written application for employment maintenance support (temporary retirement) to the Defendant to the effect that he/she paid a temporary retirement allowance according to the aforementioned plan. On January 27, 2016, the Plaintiff received KRW 29,266,180 as subsidies, equivalent to 2/3 of the total amount of the temporary retirement allowance for the said eligible persons.

D. On January 11, 2016, when a person eligible for the first leave of absence was returned to his/her work, the Plaintiff continued to reduce his/her sales, and on January 27, 2016, the date of the said receipt, the Plaintiff filed a report on a plan for employment maintenance measures (temporary retirement) with respect to 38 employees (hereinafter referred to as “the second temporary retirement”) to the Defendant from February 1, 2016 to February 29, 2016.

E. On March 14, 2016, the Plaintiff submitted a written application for employment maintenance support (temporary retirement) to the Defendant to the effect that he/she paid temporary retirement allowances pursuant to the aforementioned plan. On March 23, 2016, the Plaintiff received KRW 26,456,470 equivalent to 2/3 of the total amount of temporary retirement allowances for 37 persons, excluding B retired on February 19, 2016, among the above subjects, as subsidies.

F. On June 24, 2016, the Defendant received information from the Plaintiff’s retired workers C on the fact that he/she had worked every day during the Plaintiff’s leave period, and confirmed the fact that six persons who had worked for the first time during the period of leave and that all 37 persons, excluding B, who had worked for the second time during the period of leave, excluding B, were on the fact that all 37 persons who had worked for the second time during the period of leave.

G. The Defendant issued an order to return KRW 32,215,750 to the Plaintiff on September 19, 2016 and issued an order to additionally collect KRW 64,431,50 (=the additional collection of KRW 32,215,750) from the Plaintiff and the additional collection of KRW 32,215,750 from the Plaintiff on September 18, 2017, to restrict the payment of subsidies until September 18, 2017 (hereinafter “instant disposition”).

[Ground of recognition] Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 4, 5, 9, and 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The reasoning for the court’s explanation on this part is as follows: “I are only “I are the reasons for the judgment of the court of first instance that I would have received. I will also attend the work on February 27, 2017 and February 28, 2017 during the period of temporary retirement. However, I would like to accept the second person’s work on January 27, 2017, and the Plaintiff entered the factory on January 27, 2017 with prior consent of the employee and had the employee work on the above date. On January 27 and 28, 2016, which is prior to the period of temporary retirement, and it was confirmed that this was legitimate by the Ministry of Employment and Labor. Therefore, except for “I are as stated in the corresponding part of the judgment of the court of first instance,” it is cited as it is as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

B. Relevant statutes

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination

1) Determination as to the assertion

A) “False or other unlawful means” that can be subject to sanctions, such as an order for return and additional collection, under Article 35 of the Employment Insurance Act refers to any and all unlawful acts committed by an employer who is not generally entitled to receive, for the purpose of minimizing the eligibility for, or being ineligible for, payment of subsidies for maintaining employment. Such sanctions refer to affirmative and passive acts that may affect the decision-making on the payment of subsidies for maintaining employment, and such sanctions are imposed even if the offender has no intention or negligence, barring special circumstances (see Supreme Court Decision 2009Du4272, Jun. 11, 2009). Therefore, whether the Plaintiff is subject to the said sanctions as “a subsidy for six persons subject to temporary retirement and those subject to the second temporary retirement” or “a false or other unlawful means,” barring special circumstances.

B) Article 20 of the Enforcement Decree of the Employment Insurance Act provides that "a business owner who intends to obtain employment maintenance support shall establish a plan for employment maintenance measures on a monthly basis according to the calendar and report it to the Minister of Employment and Labor by the date preceding the scheduled date for implementation." Article 20-2 of the Enforcement Decree of the same Act provides that "a business owner who implements employment maintenance measures differently from the reported plan for employment maintenance measures on the grounds for restriction may choose not to pay all or part of the subsidies for employment maintenance for the month in which the relevant event occurred." Meanwhile, Article 28-4 of the Enforcement Rule of the Employment Insurance Act provides that a business owner who has conducted employment maintenance support to obtain employment maintenance support shall attach a copy of the ledger for the payment of leave benefits to the employee on leave of absence and one copy of the document proving his/her leave of absence.

C) In light of such legal principles and relevant Acts and subordinate statutes, it is necessary to continue to maintain, manage, and educate six persons among those subject to temporary retirement, even during the period of factory operation. The Plaintiff also seems to exclude some workers who are not production workers from those subject to temporary retirement for this reason, so that they would have received education for new employees, or would have received education for new employees. Considering the overall purport of oral arguments, the Plaintiff reported the temporary retirement plan on December 10, 2015, and submitted the record of temporary retirement to the head of the factory in charge of business instruction for the business owner, the manager, and the new employees subject to education, and the record of temporary retirement from 20 days to 10 days to 20 days to 20 days to 20 days to 20 days to 3, 4, 7, 9, and 11, to 20 days to 20 days to 20 days to 3, 20 days to 2, as in the case of new employees subject to temporary retirement from work.

The term "temporary retirement" refers to the personnel disposition of the employer prohibiting or exempting an employee from performing his/her duties for a certain period of time, while leaving his/her status as a worker when it is impossible or inappropriate, and participation in education conducted in substitution for working hours also does not differ from the provision of labor. According to the above facts of recognition, it is reasonable to view that the F, G, and H did not implement a temporary retirement different from the plan reported by the Plaintiff, in cases of F, G, and H, which provided labor necessary for the management of the Plaintiff's facilities by attending the factory at the request of the head of the factory who is in the position of training or participating in education even after reporting the Plaintiff's temporary retirement plan, by attending the factory after receiving a request from the Plaintiff.

Nevertheless, the Plaintiff filed an application for employment maintenance support with the purport that the said six persons were continuously granted leave for one month. During that process, the Plaintiff used a false confirmation that the said persons did not attend work and an active means to prepare and submit a records of commuting to and from work. This constitutes “any false or other unlawful means that affect the Defendant’s decision-making regarding the payment of employment maintenance support payment.”

D) Next, comprehensively taking account of the overall purport of the arguments as to the persons subject to secondary leave, the following: (a) the Plaintiff filed a report on a leave of absence on January 27, 2016, stating the period of the leave of absence from February 1, 2016 to February 29, 2016; (b) the Plaintiff allowed all those subject to the leave of absence to work on February 27, 2016, and on March 28, 2016, in order to meet the ordered supply schedule; (c) the Plaintiff filed an application for support payment on March 14, 2016 and submitted a confirmation document stating the details of the leave of absence on February 27, 2016 and the above period of leave of absence, as reported by the persons subject to the leave of absence.

As seen above, since the Plaintiff did not implement temporary retirement on February 27, 2016 and February 28, 2016 included in the period of temporary retirement reported, this constitutes a violation of the plan to restrict the supply of and demand for employment maintenance support, and even if the Plaintiff actually implemented temporary retirement from January 27, 2016 to February 26, 2016, it is the same as long as the Plaintiff violated the plan by implementing temporary retirement different from the scheduled date of the report.

Furthermore, according to Article 20(1) of the Enforcement Decree of the Employment Insurance Act, which provides that a plan for employment maintenance measures shall be reported by the date prior to the scheduled date of implementation, with respect to temporary retirement from January 27, 2016 to February 26, 2016 that the Plaintiff actually implemented, a plan for employment maintenance may be reported by January 26, 2016, which is the day prior to the scheduled date of implementation. However, on January 27, 2016, when the Plaintiff reported a plan for employment maintenance measures, it was deemed that the period has already expired and it was not possible to meet the requirements for the above temporary retirement.

Nevertheless, the Plaintiff did not at all refer to the Plaintiff’s provision of temporary retirement on a date different from the reported plan while applying for employment maintenance support for the purpose that the Plaintiff continued to provide temporary retirement for the period of one month. During that process, the Plaintiff used a false confirmation statement as if the Plaintiff was a temporary retirement as of February 27, 2016 and a positive means of preparing and submitting a false statement of temporary retirement as of February 27, 2016 and a record of temporary retirement record book. This also constitutes a false or other unlawful means that affect the Defendant’s decision on the payment of employment maintenance support payment.

E) Therefore, the Plaintiff’s six and the secondary persons subject to temporary retirement are subject to sanctions such as ordering return and additional collection, etc., on the grounds that the Plaintiff’s act of receiving temporary retirement is subject to sanctions such as falsely stating the period of temporary retirement and those subject to temporary retirement. The Plaintiff’s assertion on this issue is without merit.

2) Judgment on the argument

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for the part concerning section 5, 7, and 13 of the judgment of the court of first instance as follows. Thus, this part's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

According to the statement of Gap evidence 4, the plaintiff's accounting staff is scheduled to hold a leave of absence on January 27, 2016, because it is merely a violation of the principle of preferential trust protection, and the plaintiff's answer to the purport that "it is possible to hold a leave of absence for three days prior to the leave of absence or three days prior to the leave of absence," and that "it is possible to hold a leave of absence if there is an agreement between the worker and the business owner". However, according to the statement of Eul evidence 6, the plaintiff's person in charge of the plaintiff's subsidy's work should pay a leave of absence before the leave of absence, and if there is a change in the contents of the plan, the defendant's opinion that "the above change in the contents of the plan should be reported by the change plan if there is a change in the contents of the plan," and it can not be recognized that the defendant's opinion that "the above change in the employment security center's opinion that it is not a substitute for the above business owner's work."

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.