(영문) 서울고등법원 2020.12.10. 선고 2020누41506 판결

The Defendant’s disposition of restricting the payment of job-seeking benefits against the Plaintiff on March 13, 2018, ordering the Plaintiff to return KRW 1,909,940, and imposing additional collection shall be revoked, respectively.

2. Purport of appeal

The following part of the judgment of the court of first instance shall be revoked. The defendant's disposition of ordering the return of KRW 1,909,940 against the plaintiff on March 13, 2018 shall be revoked.

Reasons

1. Scope of the judgment of this court;

Where an appeal is filed only against a part of the judgment of the court of first instance which rejected several claims, the remaining parts which have not been appealed shall be prevented, and they shall be transferred to the appellate court. However, as long as the plaintiff does not expand the purport of appeal until the time the arguments are concluded, the remaining parts shall not be subject to the judgment of the appellate court, and the lawsuit shall be terminated simultaneously with the judgment of the appellate

(See Supreme Court Decision 2009Da35842 Decided July 28, 2011)

In the first instance court, the Plaintiff sought revocation of the restriction on payment of job-seeking benefits, the order of return of KRW 1,909,940, and the disposition of additional collection. The first instance court dismissed the part of the claim for revocation of the aforementioned additional collection, and rendered a judgment dismissing the remainder of the Plaintiff’s claim. The Plaintiff appealed against the part of revocation of the above order of return, among the part against which the Plaintiff lost, only the part against which the above order of return was revoked, and this court rendered a judgment dismissing the remainder of the appeal is obvious in the record.

Examining the above facts in light of the legal principles as seen earlier, the first instance court dismissed the lawsuit seeking revocation of the above additional collection disposition, and dismissed the claim for revocation of the above restriction on the payment of job-seeking benefits, which was not subject to the judgment of the court prior to remand, and the same became final and conclusive simultaneously with the judgment of the court prior to remand. Therefore, only the part requesting revocation of the above restriction on the payment of the above order becomes subject to

2. cite the judgment of the court of first instance

This court's reasoning is to delete the reasoning of the judgment of the court of first instance. Paragraph (2) of Article 8 of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act are as follows: (a) deleted the grounds of the judgment of the court of first instance; and (b) amended the "disposition of restricting the payment of job-seeking benefits of this case and the Order of Return of this case" in Paragraph (3) as the "Disposition of Order of Return of this case"; and (c) subsequent to the 14th eight

2. Additional matters to be determined;

6) Determination as to whether discretionary power is deviates or abused

A) The plaintiff's assertion

5 The Plaintiff’s assertion that the existence or absence of the instant disposition grounds is limited to 4 days of actual employment, but the Plaintiff’s disposition ordering the full return of job-seeking benefits related to the period subject to recognition of unemployment (41 days) shall be deemed to include the assertion that the instant return order disposition was deviates from and abused by discretionary authority, and thus, it shall be determined accordingly.

B) Determination

In full view of the above facts and the following circumstances admitted by the evidence, the instant return order disposition cannot be deemed unlawful since it deviates from and abused discretion. Thus, the Plaintiff’s above assertion is without merit.

(1) Article 62 (1) of the Employment Insurance Act provides that "the head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits received, and in addition, he/she may collect an amount not exceeding the amount equivalent to the amount of job-seeking benefits received by such fraudulent or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor." It clearly separates "all or part of the total amount of job-seeking benefits subject to an order to return" and "job-seeking benefits received by fraud or other improper means" from "the amount of job-seeking benefits received by such fraudulent or other improper means." It clearly prescribes that "the amount of job-seeking benefits received by such fraudulent or other improper means" can be recovered as final two times through the order to return and additional collection of the total amount of job-seeking benefits received by such fraudulent or other improper means." The purport of the Employment Insurance Act provides that the amount exceeding one time the amount of job-seeking benefits received by such fraudulent or other improper means can be established and maintained the legal order to relieve the beneficiary.

(2) Article 104 of the Enforcement Rule of the Employment Insurance Act provides that "the person who has received job-seeking benefits by fraud or other improper means shall be ordered to return all the job-seeking benefits paid" under subparagraph 1 and subparagraph 2 of Article 80 of the Decree shall only order the person who has received job-seeking benefits for the unemployment recognized as such reason (limited to one fraudulent act) to return only the job-seeking benefits paid for the unemployment recognized as such reason: Provided, That if a daily worker under subparagraph 6 of Article 2 of the Decree has provided his/her labor during the unemployment recognized period, and the difference between the number of days reported and the days actually recognized as such does not exceed three days, it shall be ordered to return job-seeking benefits for the recognized period regardless of the number of unlawful acts." Article 80 subparagraph 1 of the Enforcement Decree of the Employment Insurance Act provides that "the person who has received job-seeking benefits by fraud or other improper means shall return the amount of his/her job-seeking benefits by 00 days before he/she voluntarily reported his/her employment to an employment security office or his/her workplace," under subparagraph 2 of Article 10 of the Act.

Articles 104 and 105 of the Enforcement Rule of the Employment Insurance Act provide that “the job-seeking benefits paid in excess of the actual benefits from unlawful acts” or “the job-seeking benefits paid in excess of the period subject to the recognition of unemployment status shall not externally be binding upon citizens or courts.” However, Article 62(1) of the Employment Insurance Act provides that “the amount exceeding one times the amount of job-seeking benefits paid in false or other unlawful means may be recovered through an order of return and additional collection” is already stipulated under Article 62(1) of the Employment Insurance Act. In addition, Article 104 Subparag. 3 of the Enforcement Rule of the Employment Insurance Act provides that only when an administrative investigation is filed prior to the commencement of an administrative investigation, the actual benefits accrued from unlawful acts shall be considered as the subject of the order of return.” In other cases, it is difficult to view that the legislative purpose of the Employment Insurance Act’s provision or the provisions of the Enforcement Rule of the Employment Insurance Act’s duty of return cannot be deemed as a violation of the Act’s legislative purpose.

(3) In addition, taking account of the following circumstances, it is difficult to deem that the instant return order in accordance with the criteria set forth in Article 104 subparag. 2 of the Enforcement Rule of the Employment Insurance Act is considerably unfair in light of the content of the offense and the relevant statutes and the purport

(A) Article 47(1) of the Employment Insurance Act provides, “If an eligible recipient of job-seeking benefits has been employed during the period subject to the verification of unemployment, he/she shall report the fact to the head of the Employment Security Office.” The Plaintiff also knew on November 14, 2017, prior to the date of the second application for the verification of unemployment, that the Defendant is obliged to report the fact immediately if he/she obtains income by being employed by the Defendant on November 14, 2017.” Nevertheless, on December 5, 2017, the Plaintiff, upon preparing and submitting the second application for the verification of unemployment, by deceiving the Defendant, stating that “no “the fact of unemployment” exists in the verification of unemployment during the period subject to the verification of unemployment, was paid the job-seeking benefits for the instant period by deceiving the Defendant, and thereafter, the employment of the instant case was found only after the Defendant’s additional investigation.

(B) According to Article 12(2)2 of the “Rules on the Recognition of Unemployment and the Assistance to Re-employment” (Rules of the Ministry of Employment and Labor No. 119, Jan. 9, 2017), the Defendant first designated the date of application for the second unemployment recognition as of October 22, 2017, which is the date following the first unemployment recognition, as of October 26, 2017, and announced the Plaintiff on November 22, 2017. However, the Plaintiff applied for the second unemployment recognition as of December 5, 2017, and the period subject to the second unemployment recognition increased by 41 days from October 26, 2017 to December 5, 2017.

(C) According to Article 62(1) of the Employment Insurance Act, the Defendant has the discretion to collect additionally the amount of job-seeking benefits paid to the Plaintiff by fraud or other improper means, in addition to the order to return the former job-seeking benefits paid to the Plaintiff. In addition, Article 105(2)2 of the Enforcement Rule of the Employment Insurance Act provides that additional collection may be exempted only once for fraudulent acts not reported on employment. However, even in accordance with the business process standard, additional collection need not be exempted. Nevertheless, the Defendant issued an order to the Plaintiff only refund KRW 1,909,940 for the second job-seeking benefits by applying the main sentence of Article 104 subparag. 2 of the Enforcement Rule of the Employment Insurance Act, and did not separately impose additional collection on the amount of job-seeking benefits, etc. paid to the Plaintiff in relation to the violation of the obligation to report employment in favor of

3. Conclusion

Thus, the plaintiff's claim for cancellation of the return order of this case shall be dismissed as it is without merit. In conclusion, the judgment of the first instance is legitimate, and the plaintiff's appeal is dismissed.