(영문) 광주지방법원 2016.7.21. 선고 2016구합10879 판결

A. On May 31, 2004, the Plaintiff was unemployed on May 15, 2014 while working for a National Assembly member B office. On July 7, 2014, the Plaintiff recognized the Defendant’s entitlement to KRW 180,000 for the fixed benefit payment days and KRW 40,000 for the job-seeking benefits for 28 days.

B. On August 11, 2014, the Plaintiff, who was receiving job-seeking benefits, was employed in the National Assembly C Office and served for more than 12 months, and applied for the payment of early re-employment allowances to the Defendant on August 17, 2015. However, on November 30, 2015, the Defendant decided the Plaintiff’s application for the payment of early re-employment allowances to the Plaintiff on the ground that the business owner of the workplace re-employed to the Plaintiff and the business owner of the last place of employment are the same (hereinafter “instant disposition”).

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 2 through 4, and the whole purport of pleading

A. The plaintiff's assertion

1) First, in the labor relations law, the business owner against the plaintiff is the president of the National Assembly, not the president of the National Assembly, but the member of the National Assembly in light of the following: (a) whether the specific person in the labor relations law is in a position to substantially and specifically control and determine the terms and conditions of labor; (b) whether a member of the National Assembly is in an independent constitutional authority and its authority and obligations are completely separate from the Speaker of the National Assembly and the President of the National Assembly; (c) the assistant of the National Assembly is in employment and subordinate relationship to the member of the National Assembly; and (d) the conclusion and termination of a labor contract depends on the decision and status

2) Second, Article 108 of the Enforcement Rule of the Employment Insurance Act is an illegal order beyond the delegation scope of the Employment Insurance Act, the parent company, and thus, the instant disposition based thereon is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Article 1 of the Employment Insurance Act provides that "the legislative purpose of the Employment Insurance Act is to contribute to the economic and social development of the worker's livelihood stability and job-seeking by providing the necessary benefits during his/her unemployment." Accordingly, Article 37 of the Employment Insurance Act provides that the amount of early re-employment allowance to minimize the period of the worker's unemployed status as one of the unemployment benefits and to encourage early re-employment in a stable occupation. Article 64 of the Employment Insurance Act provides that early re-employment allowance shall be paid by stipulating that early re-employment allowance meets the standards prescribed by Presidential Decree in cases where an eligible recipient re-employment in a stable occupation or engages in a profit-making business, and accordingly, the payment criteria for early re-employment allowance shall be determined by Presidential Decree. Article 84 of the Enforcement Decree

In order to prevent excessive payment of early re-employment allowance or abuse, Article 84(1)1 proviso of the Enforcement Decree of the Employment Insurance Act provides that "a business owner who is employed by an eligible recipient or a business owner related to such business and re-employed by Ordinance of the Ministry of Employment and Labor or who promised to employ prior to the reporting date of unemployment under Article 42 of the Act" shall not be paid early re-employment allowance. Accordingly, Article 108 of the Enforcement Rule of the Employment Insurance Act provides that "a business owner prescribed by Ordinance of the Ministry of Employment and Labor" under the proviso to Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act refers to a business owner who has retired from employment as at the time of the final severance from employment of the relevant eligible recipient and who has

Meanwhile, Article 2 subparag. 1 of the Employment Insurance Act provides that "the separation from employment means the termination of an employment relationship between the insured and the business owner," and Article 15(1) provides that "the business owner shall report matters concerning the acquisition, loss, etc. of the insured status of the workers employed by the business to the Minister of Employment and Labor, as prescribed by Presidential Decree." In addition, Article 5(1) of the Act on the Collection, etc. of Insurance Premiums for Employment Insurance and Industrial Accident Compensation Insurance provides that "the owner and workers of a business subject to the Employment Insurance Act naturally become the insured of the employment insurance under the Employment Insurance Act." Article 13(1)1 of the same Act provides that "The insurance premium for employment security, vocational ability development, and unemployment benefits (hereinafter referred to as "employment report fee") shall be collected from the insured in order to cover expenses incurred

2) Determination on the first argument

In addition to the statement in the above relevant Acts and subordinate statutes, the following circumstances are acknowledged as being added to the purport of the argument. ① Early re-employment allowance means a person who has reported to the Minister of Employment and Labor on the acquisition and loss of insured status of the worker employed for the business, ② Payment is a beneficial administrative act, ② Payment of early re-employment allowance is excluded from the payment criteria for early re-employment allowance is aimed at preventing excessive payment or abuse of early re-employment allowance, and early re-employment allowance is the employment insurance fund created with employment insurance premium. The early re-employment allowance is the fund for public interest to maintain the soundness of the fund by preventing unfair supply and demand, and thus the payment criteria should be recognized as broad discretion in establishing the payment criteria, unless there are special circumstances that make it objectively reasonable or unreasonable. ③ The employer mentioned in the early re-employment allowance refers to the person who has reported to the Minister of Employment and Labor on the acquisition and loss of insured status of the worker employed for the business, and the person who has reported and borne the employment insurance premium for the plaintiff's qualifications and loss of insured status is not the National Assembly member but the National Assembly member.

3) Judgment on the second argument

In light of the purport of the proviso of Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act, the proviso of Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act provides that "the case where an eligible recipient is re-employed by the business owner who has left the last place of employment or any other business owner prescribed by Ordinance of the Ministry of Employment and Labor as the business owner who has left the last place of employment, and is related to the business owner who has left the last place of employment, is interpreted as the business owner prescribed by Ordinance of the Ministry of Employment and Labor. ② In light of the purport of the proviso of Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act to prevent excessive payment of early re-employment allowances or abuse of early re-employment allowances, it seems reasonable to interpret that an early re-employment allowance is not paid without exception to the case where an eligible recipient is re-employed by the business owner who has left the last place of employment. Accordingly

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

presiding judge, judge, roadside;

Judges Kim Gin-soo

Judges Cho Jong-hee

Note tin

1) The Plaintiff stated the date of disposition in the purport of the claim as “ January 12, 2016.” However, according to the statement in the evidence No. 3, this is examined.

‘A clerical error in November 30, 2015' seems to be a clerical error.