2011Guhap1716 Revocation of Disposition, such as restrictions on the payment of employment security subsidies and decision to return them

A Labor Law Firms

The head of the Seoul Regional Employment and Labor Office Seoul Western Site

June 3, 2011

July 8, 2011

1. The Defendant’s disposition of additionally collecting KRW 16,200,000 against the Plaintiff on January 22, 2010 is revoked. 2. The remainder of the Plaintiff’s claim is dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s disposition on January 22, 2010, such as restricting the payment of subsidies for employment security and determining the return thereof, shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 2, 6, Eul evidence No. 1, Eul evidence No. 3-1, 2, Eul evidence No. 14.

A. On December 1, 2008, the Plaintiff (formerly named “B labor law firm”) employed C on December 1, 2008, and applied for the amount of 4,200,000 won for new employment promotion incentives as follows.

A person shall be appointed.

B. As a result of a survey on whether the Plaintiff’s demand and supply of the above incentives was appropriate on November 2009, the Defendant (hereinafter “the head of the Seoul Western District Office”) deemed that he/she received subsidies from the Plaintiff by formally arranging C through the Internet website. Accordingly, on January 22, 2010, the Defendant issued an order to the Plaintiff for additional collection of subsidies from the Employment Insurance Act (amended by Act No. 1037, May 31, 2010; hereinafter the same shall apply), Article 35 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same shall apply), Article 78(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009; hereinafter the same shall apply), and Article 208(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 2001, Mar. 16, 20008, Feb. 201, 2019).

D. The Plaintiff did not have any record of support under the Employment Insurance Act by improper means before employing C.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

In light of the fact that the high-friendly job offering C of the Plaintiff’s staff D was playing as the Plaintiff’s office by finding D, it is difficult for the Plaintiff to have employed C as a formal referral in light of the fact that: (a) the Plaintiff’s representative, after completing a law school entrance examination preparation and returning to the work; (b) the Plaintiff’s application for job offers was made to C because there is no adequate person among the job-seeking applicants; and (c) C was employed as the most suitable person among the job-seeking applicants; and (d) the Plaintiff was employed as a job-seeking applicant. Moreover, the Plaintiff does not require the arrangement as the requirements for the supply of new employment promotion incentives under Article 26 of the Enforcement Decree of the Employment Insurance Act. Accordingly, even if a new employment promotion subsidy was granted through a formal referral, it cannot be said that the Plaintiff was paid a subsidy by unlawful means. Therefore, each of the instant dispositions is unlawful.

2) Violation of the principle of trust protection.

Although the Defendant continued to pay the incentives to the Plaintiff on eight occasions, it changed the position of the Plaintiff and made each of the instant dispositions. Accordingly, each of the instant dispositions was unlawful in violation of the principle of trust protection.

3) Violation of the principle of clarity.

Since the concept of "illegal method" under Article 35 (1) of the Employment Insurance Act is ambiguous, it goes against the principle of clarity. Therefore, each of the instant dispositions based on Article 35 (1) of the Employment Insurance Act is unlawful.

4) Violation of the principle of excessive prohibition

The plaintiff is a small business entity, and the disposition of this case has much more property disadvantage than the amount of the bounty received due to each disposition of this case, so each disposition of this case is against the principle of excessive prohibition.

5) Violation of the principle of equality

Article 78 of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor on April 1, 2009) was amended by Ordinance of the Ministry of Labor on February 9, 2010, and Article 338 of the Ministry of Labor was amended by Ordinance of the Ministry of Labor on February 9, 2010 to change the amount of additional collection at the time of detection even if the same illegal supply and demand was committed. A discriminatory disposition is subject to a discrimination depending on the distinction between the timing when it cannot be deemed justifiable, which contradicts the principle of equality

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination as to the non-existence of grounds for disposition

The new employment promotion incentive system prescribed by the Employment Insurance Act is a system that pays incentives to business owners who newly employ them through the arrangement of employment security offices, etc. in cases where the aged, disabled, long-term job seeker, female, youth, etc. are in unemployment conditions for a certain period after filing an application for jobs. The purport of the employment security offices, etc. is to pay the incentives to the employment security offices, etc. as the requirement for paying the incentives is to provide the incentives to the employment of the socially vulnerable class who are particularly difficult to find employment under the ordinary conditions of the employment market without government intervention, so good offices should be practically conducted, and where the employer already knows workers and is able to employ them by mutual agreement, i.e.

However, comprehensively taking account of the overall purport of the arguments in Gap evidence 16, Eul evidence 1, Eul evidence 4-1, Eul evidence 5, 9, 10, and 13, Eul evidence 16-3, Eul evidence 5, 9, 10, and Eul evidence 13, the defendant's employee D's friendly job offering of job seeking and job seeking with the Internet website that falls under the employment security office, etc. on July 23, 2008, and October 23, 2008, and the plaintiff's employee D's job offering on October 21, 2008, and all of the above job seeking, mediation, and job offering registration were registered with the Worknet on October 21, 2008. The plaintiff's above IP address was the plaintiff's IP address (F) address at the time of job offering registration, and the plaintiff's representative Eul recommended the plaintiff's plaintiff's job seeking by talking with the plaintiff's company as the plaintiff's worker's representative.

According to the above facts of recognition, the plaintiff and C are already aware of each other and are able to be employed by agreement, and thus, they concluded an employment contract through formal mediation procedures despite the necessity of mediation by the employment security office, etc. Therefore, the plaintiff is deemed to have received a new employment promotion subsidy by "any false or other unlawful means" as stipulated in Article 35 (1) of the Employment Insurance Act. Therefore, this part of the plaintiff's

2) Determination on the assertion of violation of the principle of protection of trust

Since the defendant cannot be deemed to have given the trust that the incentives would be paid even in the case where the plaintiff employed C in the form of good offices as seen earlier without undergoing genuine good offices for the plaintiff, the defendant continued to pay the incentives to the plaintiff on the wind that the plaintiff did not immediately discover the plaintiff's mistake, not subject to the payment of the incentives, and the defendant cannot be deemed to have ordered a public opinion statement that is the subject of trust for the plaintiff. Therefore, this part of the plaintiff

3) Determination as to the assertion of violation of the principle of clarity

"Unlawful means" under Article 35 (1) of the Employment Insurance Act refers to all acts that are generally recognized as illegal by social norms, such as pretending eligibility for benefits by a non-eligible person, and its meaning can be fully embodied through legal interpretation, thereby providing objective criteria to exclude arbitrary application of administrative agencies and courts. Accordingly, the plaintiff's assertion on this part is without merit.

4) Determination on the assertion of violation of the principle of excessive prohibition

A) According to Article 35(1) of the Employment Insurance Act and Article 56(1) and (2) of the Enforcement Decree of the same Act, the Minister of Labor shall order a person who received a subsidy, etc. by fraud or other improper means pursuant to Article 35(1) of the Employment Insurance Act to return the subsidy, etc. already paid and to restrict the payment thereof, and the public interest seeking appropriate support for the creation and promotion of employment within the scope of sound national finance through the restriction on payment and the return of this case is greater than the disadvantage of the Plaintiff’s assertion that the restriction on payment and the return of this case are suffered from the public interest within the scope of sound national finance, and thus, it cannot be deemed unlawful in violation of the principle of excessive prohibition. Accordingly, the Plaintiff’

B) Additional collection disposition

(1) The meaning of the frequency of illegal electricity

Considering that the Plaintiff’s payment of incentives constitutes an illegal power by the frequency of receipt of incentives, the Defendant deemed that the entire amount of the illegal receipt after April 1, 2009 constituted “cases where the Plaintiff received or applied for payment by false or unlawful means during the last five years prior to the date of detection of the unfair receipt” under Article 78(1)3 of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter the same) constitutes “cases where the number of applications filed or filed is more than twice”.

However, according to Article 78(1) of the Enforcement Rule of the Employment Insurance Act, the Minister of Labor may additionally collect double, three, five times the amount of incentives received by false or other unlawful means in accordance with the frequency of application for such unlawful acts for the latest five years prior to the date of detection (hereinafter “illegal power”). (1) In light of the purport of Article 78(1) of the Enforcement Rule of the Employment Insurance Act differently stipulating the amount of additional collection due to unlawful acts that are discovered within a specific period of five years, the number of such unlawful acts is deemed to mean a separate unlawful acts committed prior to such fraudulent acts. (2) In light of the same purport of Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act, the number of such unlawful acts cannot be deemed to include such unlawful acts in the number of times of application for such unlawful acts, and thus, the number of times of application for such unlawful acts cannot be considered to include such unlawful acts in the number of times of application previously being discovered or in the number of times of application for such unlawful acts. (3) The number of times of application for such unlawful acts cannot be discovered.

(2) Whether the discretion is deviates or abused

In light of the aforementioned legal principles and facts as seen earlier, and the following circumstances revealed in the argument of this case, i.e., (i) even if the criteria for the additional collection disposition stipulated under Article 78(1) of the Enforcement Rule of the Employment Insurance Act, the Defendant’s additional collection disposition against the Plaintiff on or after April 1, 2009 should be deemed double the amount that the Defendant received from the Plaintiff. (ii) In order to additionally collect five times the upper limit of additional collection under the Employment Insurance Act, it is reasonable to view that the Defendant’s additional collection of the amount of the subsidies should be deemed that the Defendant’s violation should be serious, such as the case where the Plaintiff, even though already received several sanctions related to the illegal receipt of the subsidies from the administrative agency, has not been subject to the same illegal act, and (iii) the Defendant’s additional collection disposition against the Plaintiff on or after April 1, 2009, such as the return order, etc. for the reason that the Plaintiff received the subsidies from the Defendant on or before the instant disposition, would be harsh to the extent of the degree of the violation.

(3) Sub-decisions

Therefore, since the disposition of additional collection in this case was unlawful by deviating from and abusing discretion, the disposition of additional collection in this case should be revoked in entirety without examining the remainder of the plaintiff's remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Gimdo,

Judges Hanwon-won

Judges Lee Sung-won

1) The defendant calculated the additional collection of 1.2 million won in total of the amount of fraudulent supply and demand before April 1, 2009, and the Enforcement Rule of the Employment Insurance Act (hereinafter referred to as the "Enforcement Rule of the Employment Insurance Act").

1. Additional collection pursuant to Article 78(1) of the Labor Ordinance, Article 3(1) of the Addenda to the Enforcement Rule of the Employment Insurance Act (amended by the Ordinance of the Ministry of Labor No. 319);

In calculating the sum of 1.2 million won, and in calculating the sum of the sum of the illegally received amounts after April 1, 2009, the additional collection for KRW 3 million shall be made.

The Enforcement Rule of the Employment Insurance Act (Ordinance of the Ministry of Labor February 9, 2010), deeming that the Plaintiff’s receipt of the incentives falls under each of the illegal demand and supply records by the number of

Article 78(1)3 of the Employment Insurance Act (amended by Act No. 338); Article 5(1) of the Addenda to the Enforcement Rule of the Employment Insurance Act (amended by Presidential Decree No. 2035, Feb. 9, 2010)

It is calculated as KRW 15 million.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.