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(영문) 수원지방법원 2016.12.7.선고 2016구단7242 판결
조기재취업수당부지급처분취소
Cases

2016Gudan7242 Revocation of revocation of the Payment of Early Re-employment Allowance

Plaintiff

A

Defendant

The Administrator of the Gyeonggi Local Labor Agency;

Conclusion of Pleadings

November 16, 2016

Imposition of Judgment

December 7, 2016

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

The Defendant’s disposition of early re-employment allowance paid to the Plaintiff on October 15, 2015 is revoked.

Reasons

1. Details of the disposition;

A. On July 18, 2014, the Plaintiff: (a) applied for recognition of eligibility for employment insurance benefits to the Defendant on the ground that he/she retired from employment on July 14, 2014; (b) obtained recognition of eligibility for employment insurance benefits of KRW 150 days and daily amount of job-seeking benefits of KRW 18,756 from July 25, 201 to August 26, 201; and (c) received job-seeking benefits of KRW 618,950 for 33 days in total from July 25, 2014 to August 26, 2014.

B. On August 27, 2014, the Plaintiff was employed by mining transport limited partnership (hereinafter “mining transport”) and retired on December 28, 2014. On January 12, 2015, the Plaintiff was employed by Changjin Transportation Co., Ltd. (hereinafter “ Changjin Transportation”) and claimed early re-employment allowance to the Defendant on October 15, 2015. However, on October 15, 2015, the Defendant filed a claim for early re-employment allowance with the Defendant on the ground that the Plaintiff did not constitute “where the Plaintiff was employed continuously for 12 months or more” as stipulated in Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act (hereinafter “instant disposition”). Moreover, the Plaintiff rejected the claim against the examiner for early re-employment allowance on the ground that the Plaintiff did not constitute “where the Plaintiff was employed continuously for 12 months or more”, but received a request for review by the Employment Insurance Review Committee on December 5, 2015.

[Ground of recognition] No dispute, Gap 5, Eul 1 through 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On December 2, 2014, the Plaintiff was subject to unilateral notification to serve only on December 31, 2014, regardless of his/her intention. As a result, the Plaintiff was informed of another company on December 28, 2014 when he/she was aware of another company for the purpose of maintaining livelihood, and the Plaintiff was urged to have an interview from the creative transport on December 31, 2014, and submitted the necessary documents on January 7, 2015, after receiving education on January 10, 201, and started work on the creative transport from January 12, 200 to December 31, 2014. In the case of the Plaintiff, it is reasonable to view that the Plaintiff was subject to early re-employment as unlawful since the Plaintiff’s actual obligation to provide for a new period from December 29, 2014 to January 11, 2015 was found to fall under the foregoing period of work, and thus, the Defendant was not subject to prior re-employment.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Article 64(1) of the Employment Insurance Act provides that an eligible recipient shall be paid early re-employment allowances if the eligible recipient is re-employed at a stable occupation and if the eligible recipient satisfies the criteria prescribed by Presidential Decree. Article 84(1) of the Enforcement Decree of the same Act provides that “The criteria prescribed by Presidential Decree” under Article 64(1) of the same Act means that an eligible recipient is employed for at least 12 consecutive months for the re-employed business owner as of the day immediately preceding the date of re-employment after the waiting period under Article 49 of the Act, where the eligible recipient remains at least 1/2 of the fixed benefit payment days under Article 50 of the Act, as of the day immediately preceding the date of re-employment. As such, the purport of the Employment Insurance Act that the Employment Insurance Act pays early re-employment allowances is to minimize the period of de-employment and encourage stable re-employment by paying a certain amount of money equivalent to the unpaid part of the fixed benefit payment days (see Supreme Court Decision 2009Du19892, Dec. 8, 8, 20

2) We examine the instant case in light of the aforementioned relevant statutes and legal principles. In full view of the following circumstances acknowledged by the overall purport of the evidence and arguments as seen earlier, the Plaintiff did not err in the instant disposition issued by the Defendant on the ground that the Plaintiff did not continuously employ for 12 months or longer as the requirement for early re-employment allowance under Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act.

As recognized by the Plaintiff, it is clear that the employment interruption occurred for 14 days from December 29, 2014, the following day after the Plaintiff retired from mining transport to January 11, 2015, which is the day before the start of work, and it does not themselves constitute "cases where the Plaintiff has been employed continuously for 12 months or more" under Article 84 (1) 1 of the Enforcement Decree of the Employment Insurance Act.

In the event that the employment relationship between ○○ employee and his/her own intent or cause is severed, there is room for more flexible and flexible approach to the interpretation of “where the employee has been employed continuously for 12 months or longer as the requirement for early re-employment allowance.” From this perspective, to accept the Plaintiff’s assertion, the premise that the period of early re-employment, which the Plaintiff initially expected from the secondary transportation, was temporarily interrupted differently from the anticipated period, is insufficient to recognize that the Plaintiff was actually dismissed from the secondary transportation around December 28, 2014. Rather, according to the employment contract (AA C) drafted by the Plaintiff between the secondary transportation around December 28, 2014, the Plaintiff’s working period can be stated as “from August 8, 207 to December 31, 2014.” This is, in principle, distinguishable from the part of the Plaintiff’s employment contract that appears to exist as a short-term one-term employment contract.

○ As such, the Plaintiff, who entered into a short-term employment contract, should be deemed to have known or could have known the fact that the said short-term employment contract was unable to receive early re-employment allowances only from the time when he entered into the employment contract with light transport business, and even if not, in order to meet the requirements of “re-employment continuously for 12 months or longer” in order to receive early re-employment allowances, the Plaintiff did not have any interruption of the employment period, such as identifying another workplace or employment place in advance at the end of the period of employment in light of the end of the period of employment in light of the legal holiday, even if he did not do so, the short-term employment period of 14 days or more was set aside regardless of the Plaintiff’s intent or does not have any responsibility for the Plaintiff.

○ In the end, the Plaintiff concluded a short-term employment contract with a maximum working period of four months, and worked in mining transport, and the period of employment was reduced for 14 days during the process of finding another workplace after retirement (at the request of the company). Although it is recognized that the Plaintiff satisfied different requirements for early reemployment allowance and made considerable efforts to re-employment to another company at the early stage after retirement, it is difficult to view the Defendant’s instant disposition as a measure contrary to the purport of the payment of early re-employment allowance as seen earlier.

As alleged by the Plaintiff, the Enforcement Decree of the Employment Insurance Act (Presidential Decree No. 25022) revised on December 24, 2013 to receive early re-employment allowances was required to be continuously employed by the same business owner. However, the above revision requires that the same business owner should not be excluded from the subject of early re-employment allowances even in cases where the business owner changes without the interruption of employment status. However, even if the business owner changes, it refers to a person who continues to work without the interruption of employment status, such as the Plaintiff, even if the business owner changes, and as well as the Plaintiff, it does not purport to recognize a worker who temporarily fell short of employment status as a beneficiary of early re-employment allowances.

3. Conclusion

The plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges

Judges Kim Gin-han

Attached Form

A person shall be appointed.

A person shall be appointed.

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