(영문) 전주지방법원 2012.10.9. 선고 2011구합3163 판결

1. On April 4, 2011, the Defendant’s decision to restrict unemployment benefits payment, order return, and order additional collection against the Plaintiff is revoked.1)

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On July 24, 2008, the Plaintiff, as a daily employed worker, filed an application for recognition of eligibility for job-seeking benefits under the Employment Insurance Act with the Defendant on August 7, 2008, was recognized as eligible for benefits on August 7, 2008, and was paid KRW 2,633,230 on a total of four occasions from July 31 to October 28, 2008.

B. On April 4, 2011, the Defendant rendered a disposition against the Plaintiff on the ground that the Plaintiff had received job-seeking benefits by filing an application for job-seeking benefits for less than 13 days even if the number of working days during the one-month period prior to the date of applying for recognition of eligibility for benefits was less than 13 days, to restrict payment of benefits pursuant to Articles 61 and 62 of the Employment Insurance Act, to order the return of the illegally received amount of KRW 2,63,230, and to order the collection of KRW 2,63,230 of the additionally collected amount (hereinafter referred to as “instant disposition”).

C. The Plaintiff appealed and filed a request for review with an employment insurance examiner on April 11, 201, but the said request was dismissed on June 13, 201, and subsequently, on July 18, 2011, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee on July 18, 201, but the said request was also dismissed on August 23, 201.

【Ground of recognition】 The fact that there is no dispute, Gap evidence 1-1, 2-2, and 2-1, 2-2, Gap evidence 3-2, 1, 3-3, Eul evidence 1, 3, 4, 6, 7, and 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s number of working days during the one-month period prior to the date of applying for recognition of the Plaintiff’s eligibility for benefits satisfies “less than 10 days, which is a statutory requirement.” As such, the Defendant’s instant disposition was unlawful (On the other hand, the Plaintiff asserted on the premise that with respect to the one-month period prior to the date of applying for recognition of the eligibility for benefits, the initial period should be based on “from June 24, 2008 to July 23, 2008,” and added the assertion that it should be based on “from June 25, 2008 to July 24, 2008.”

2) While the Plaintiff filed an application for recognition of eligibility for job-seeking benefits with the Defendant, the final date of employment and the final place of business are different from the fact, the above matters do not relate to the eligibility for job-seeking benefits, and thus cannot be deemed to constitute a case where the Plaintiff received benefits as “a false or other unlawful means,” and thus, the instant disposition by the Defendant is unlawful

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

1) On July 24, 2008, the Plaintiff filed an application for recognition of eligibility for job-seeking benefits under the Employment Insurance Act, stating that the Plaintiff’s application falls under “B” for recognition of eligibility for job-seeking benefits, “the final place of business, April 18, 2008,” and “the number of working days during the one-month period prior to the date of application for eligibility for benefits is less than 10 days.”

2) The Plaintiff and C’s work process and work form

A) On June 2008 and July 2008 of the same year, the Plaintiff served as a daily employed worker with C at the construction site for replacing the E apartment pipe.

B) On June 11, 2008, the Plaintiff and C met F and the team leader G, and set the Plaintiff’s daily allowance of KRW 100,000,000, and C’s daily allowance of KRW 90,000, respectively, and instead the Plaintiff and C do not drink and do so, set the food expense subsidy of the Plaintiff and C as KRW 20,000 per day, and the oil subsidy expense of the Plaintiff and C as KRW 10,00 per day, respectively, began to work at the above construction site from the following day.

C) At the time of the above work, the Plaintiff was at the place of residence, with his own lane C, to work as a remaining member at the construction site. However, in the event that the Plaintiff cannot work at the same time due to circumstances, C was at the work separately using his own car.

D) In the event that the Plaintiff leaves and leaves his/her vehicle, it is difficult to settle the principal payment by means of a cash card (one bank check), and the details of the settlement during the period at issue in the instant case are as follows.

A person shall be appointed.

3) Contents of the receipt of materials and tools in the above construction site

A) Daily workers are required to sign the “written receipt of materials and tools” when receiving materials and tools from the above construction site. C received materials and tools to be used by them as well as materials and tools to be used by others. The signature was made only in its name.

B) The following are considered in light of the content of the signature during the period at issue in the instant case.

A person shall be appointed.

4) Hospitalization, etc. of Plaintiff’s wife K

A) On June 18, 2008, K hospitalized at L Hospital, which is the Plaintiff’s wife, and upon the aggravation of K’s symptoms, the Plaintiff did not work at the above construction site on June 25, 2008 and provided K’s sick nursing at the above hospital. On the day, there was a dispute with the hospital-related person as a food problem provided at the above hospital, and at that time, M, a nurse, was present.

B) On June 26, 2008, the next day, the Plaintiff released K from the above hospital. At the time, the Plaintiff paid the treatment costs of K by using its cash card. According to the sales slip, the date and time of the transaction shall be 10:4 on June 26, 2008, and the amount shall be 71,900 won.

5) Plaintiff’s receipt of wage on July 2008

A) On August 12, 2008, the Plaintiff received 1,300,000 won from the above F to its own new bank account as wages on July 12, 2008. The said amount includes C’s wage of 540,000 won on July 7, 2008 (=90,000 won x 6 days) and N’s wage of 160,000 won (=80,000 won x 2 days).

B) Meanwhile, at the time of receiving the transfer from F as above, the Plaintiff did not receive the total of KRW 180,00 (20,000 + (20,000 + 10,000 + 10,000) X6). The Plaintiff, on the same day, remitted KRW 450,000 to the post office account of C (540,000 - (180,000 x 1/2) and KRW 160,00 to the N’s foreign exchange bank account. 【In the absence of any dispute over the recognition, evidence Nos. 1-3 through 5, evidence No. 4-1 through 4, evidence Nos. 5, 7, 4-4, evidence No. 8-3, 8-9, testimony of the witness, the purport of the entire pleadings, and the purport of testimony of the whole pleadings No. C.

D. Determination

1) Criteria for calculating the 1-month period prior to the date of applying for recognition of eligibility for benefits, i.e., whether the number of working days during the one-month period prior to the date of applying for recognition of eligibility for benefits

(1) According to Article 40(1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same), job-seeking benefits are paid in cases where the insured, who retired from employment, satisfies all the requirements prescribed in each subparagraph. According to Article 40(1)5 of the same Act, a person who was a daily worker at the time of the most recent departure from employment, must be less than 10 days for the one-month period prior to the date of applying for recognition of eligibility for benefits. However, the former Employment Insurance Act is prior to the date of applying for recognition of eligibility as

As there is no provision regarding the starting point and calculation criteria of the 1 month's "month", the Civil Code provides for the calculation of the 6-month period among the general provisions of Part I, and Article 155 of the Civil Code provides that "the calculation of the period shall be made in accordance with the provisions of this Chapter unless otherwise provided by the Acts and subordinate statutes, judicial disposition or legal action." Thus, the 1-month period prior to the date of applying for the recognition of the 1-month period under the former Employment Insurance Act should also be calculated in accordance with the provisions of the Civil Code.

Therefore, according to the provisions on the period of the Civil Code, "if the period is determined by the week, month or year, it shall be calculated by the calendar" (Article 160(1) of the Civil Code), while with respect to the first day of the period, "if the period is determined by the day, week, month or year, the first day of the period shall not be included in the computation." (Article 157 of the Civil Code), with respect to the expiration point of the period, "if the period is not calculated by the first day of the week, month or year, it shall expire as of the day in the last week, month or year, which falls under the first day of the period (Article 160(2) of the Civil Code). The above provisions on the period of the Civil Code shall also apply mutatis mutandis to the period retroactively counted in the past (see Supreme Court Decision 87Meu2901, Apr. 11, 1989).

(2) As to the instant case, the former Employment Insurance Act stipulates that the number of working days during the 1-month period before the date of applying for eligibility for eligibility for benefits is less than 10 days as the requirement for job-seeking benefits, and thus, in the instant case, the period shall be determined as 'monthly'. Thus, as to the Plaintiff, the period shall be determined on the basis of whether the number of working days from June 24, 2008 to July 23, 2008, which is the day preceding the date of applying for eligibility for eligibility for benefits, is less than 10 days, and ' June 24, 2008, which is the day preceding the date falling under the initial date, falls under the first one.' Therefore, it shall be determined whether the Plaintiff satisfies the requirement for job-seeking benefits from June 24, 2008 to July 23, 208.

(3) As to this, the Plaintiff stated that the employee of the Defendant stated the period of one month prior to the date of applying for recognition of the above eligibility for benefits in the Plaintiff’s application for recognition of eligibility for benefits from June 25, 2008 to July 24, 2008 on the Plaintiff’s application for recognition of eligibility for benefits, and thus, it should be determined based on the period from June 25, 2008 to July 24, 2008 on the principle of trust protection, but the above circumstance alone alone does not make it difficult to view that the Defendant issued the name of a public opinion that is the subject of trust to the Plaintiff. Therefore, the Plaintiff

B) Whether the Plaintiff’s working days from June 24, 2008 to July 23, 2008 can be recognized as not less than 10 days

(1) Articles 61 and 62 of the former Employment Insurance Act provide for the grounds on which payment restriction, return order, and additional collection may be imposed against a recipient of job-seeking benefits by fraud or other improper means. In this case, the defendant, as long as the plaintiff applied for job-seeking benefits and received benefits for less than 10 days even if the number of working days during one month prior to the date of applying for recognition of eligibility for benefits was at least 10 days but less than 10 days, the defendant is deemed to have the burden of proving the legality of the above administrative disposition, such as the facts

(See Supreme Court Decision 84Nu124 delivered on July 24, 1984).

(2) 돌이켜 이 사건에 관하여 살피건대, 원고가 위 공사현장에 2008. 6. 24., 같은 달 28., 같은 달 30., 2008. 7. 1. 내지 5., 같은 달 7. 등 합계 9일 동안 근무하였다는 사실은 당사자 사이에 다툼이 없고, 원고가 위 공사현장에 근무할 당시 평소 자신의 차를 이용하여 C과 함께 출근하였던 사실, 위 공사현장의 자재 및 공구수령서의 2008. 6, 25.과 같은 달 27. 및 2008. 7. 8. 부분에 C의 서명이 되어 있는 사실은 앞서 본 바와 같으나, 위 처분의 경위 및 인정사실에다가 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사정들, 즉 ① 원고는 2008. 6, 25. 위 공사현장에 출근하지 아니하고 L병원에서 원고의 처 K의 병간호를 하였으며, 이어 2008. 6. 26.에는 위 병원에서 K의 퇴원수속을 밟고 치료비용을 결제하였던 점, ② 이 사건에서 원고는 수급자격 인정신청일 이전 1개월 동안의 근로일수가 9일이라고 주장하는 반면, 피고는 그보다 4일(2008.6.25. - 27. 및 2008.7.8.)이 더 많은 13일이라고 주장하면서 그 주된 근거자료로 C의 명의로 서명이 되어 있는 '자재 및 공구수령서'를 들고 있는바, C이 위 공사현장에서 자신 뿐만 아니라 다른 근로자들이 사용할 자재 및 공구도 함께 수령하면서 수령서에 일괄하여 자신의 명의로 서명하기는 하였으나, 위 자재 및 공구수령서상에 원고가 처 K에 대한 병간호로 위 공사현장에 출근하지 아니하였음이 명백한 2008. 6. 25.에는 C의 서명이 되어 있고, 반대로 원고가 출근하였다는 2008. 7. 5.에는 C의 서명이 발견되지 아니하며, 한편 2008. 7. 3.에는 원고와 C의 서명이 동시에 되어 있는 등의 사정으로 미루어 볼 때, 위 자재 및 공구수령서에 C의 서명이 있다는 사실만을 가지고서 피고의 주장과 같이 원고가 2008. 6. 25. ~ 27. 및 2008. 7. 8. 등 4일에 위 공사현장에 근무한 사실이 있다고 단정하기는 어려운 점, ③ 증인 C의 증언에의 하더라도, 원고와 C이 평소에 자주 같이 출근하기는 하였으나 반드시 같이 출근하였다고 보기 어렵고 원고의 사정이 있는 경우에는 C만이 따로 출근하기도 하였던 점, ④ 원고가 평소 위 공사현장에 출근하는 경우 자신의 차를 이용하였는데, 원고가 근무하지 아니하였다고 주장하는 2008. 6. 25. ~ 27. 및 2008. 7. 8. 등 4일 동안은 원고가 주유비를 지출한 정황이 발견되지 아니하는 점, (⑤한편, 원고는 2008. 7.경 근로일수가 6일(2008. 7. 1. 내지 같은 달 5. 및 같은 달 7.)이라고 주장하는 반면, 피고는 원고가 2008. 7. 8.에도 근무하였으므로 7일이라고 주장하는바, 원고가 2008. 8. 12. 현장소장 F으로부터 송금받은 1,300,000원 중 원고의 2008. 7.분 임금 부분을 계산하면 600,000 원(1,300,000원 - (C의 임금 부분 540,000원 + N의 임금 부분 160,000원)}인데, 이는 원고의 6일분 임금(100,000원 × 6일)과 정확히 일치하므로, 피고의 주장과 같이 원고가 2008. 7. 8.을 포함한 7일간 근무하였다고 보기는 어려운 점 등에 비추어 보면, 원고가 수급자격 인정신청일 이전 1개월 동안의 근로일수가 10일 이상이었음에도 10일 미만인 것처럼 구직급여를 신청하였다는 사실을 인정하기 부족하고, 달리 이를 인정할 증거가 없다.

C) Sub-decision

Therefore, the Defendant’s disposition that deemed the Plaintiff’s application for job-seeking benefits as a ground for disposition is unlawful, as the Plaintiff’s number of working days during one month prior to the date of applying for recognition of eligibility for benefits was not less than 10 days.

2) In an appeal litigation seeking the revocation of an administrative disposition against the Plaintiff’s recognition of job-seeking benefits, whether the Plaintiff’s final place of business and the final date of employment constitutes a case where the Plaintiff received benefits by fraud or other improper means, or not, the agency may add or change other grounds only to the extent that the original reason and basic factual relations are recognized to be identical to that of the original disposition. The existence of the basic factual relations here is determined based on whether the basic social factual relations are identical in the basic point of view, based on the specific facts prior to the legal evaluation of the grounds for disposition. The addition or alteration did not state the grounds at the time of the disposition, and the parties had been aware of such facts. Accordingly, it cannot be said that the original grounds for disposition are identical (see Supreme Court Decision 2009Du15586, Nov. 26, 2009);

B) Considering the overall purport of the pleadings as to the instant case, the Defendant issued the instant disposition to the Plaintiff on July 24, 2008, with the overall purport of the pleadings as to Gap evidence 2-2, Gap evidence 3-3, Eul evidence 6, 13, and 14, the Defendant stated "not less than 10 days of work before the date of application for eligibility for benefits - false unemployment declaration - at the time of application for eligibility for benefits on July 24, 2008." The Defendant merely determined whether all the plaintiff's request for examination against the employment insurance examiner raised by the Plaintiff against the instant disposition and the request for review against the Employment Insurance Review Committee were 10 days or more prior to the date of application for eligibility for benefits, and otherwise, it is difficult to find the Plaintiff as being entitled to benefits for not less than 10 days prior to the date of application for eligibility for benefits, regardless of the basic reasons for recognition as to the above request for review and reexamination, it is difficult to find the Plaintiff as being entitled to benefits for 10 days or more.

C) Therefore, without having to examine the Plaintiff’s above part of the claim on false entry of the last place of business and the last day of the separation, the addition of the Defendant’s above disposition grounds cannot be allowed.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges

The presiding judge, Kim Jong-tae

Judges Cho Soo-hee

Judges Kim Gin-young

Note tin

1) The Plaintiff specified the date of the instant disposition in the complaint as the date of April 4, 2011, and disposed of in the written amendment of January 10, 2012.

Around April 2, 2011, the instant disposition was corrected as "No. 12." However, according to the statements in the Evidence Nos. 1 and 12, the instant disposition was made on April 4, 2011.

Since fact-finding can be recognized, the date of disposition will be arranged as above.