(영문) 대구지방법원 2017.7.21. 선고 2017구합20455 판결

The Defendant’s decision on November 22, 2016 (decision on restricting unemployment benefits, returning benefits, and additional collection) to the Plaintiff is revoked.

Reasons

1. Details of the disposition;

(a) Plaintiff’s retirement and unemployment benefits;

1) From August 1, 2015 to April 30, 2016, the Plaintiff retired from office while serving in the Sung-do Agricultural Partnership (hereinafter “Nonindicted Corporation”).

2) On May 9, 2016, upon applying for recognition of eligibility for employment insurance benefits to the Defendant, the Plaintiff recognized eligibility for benefits of KRW 150,00 for the fixed benefit payment days and KRW 43,416 for the job-seeking benefits amounting to KRW 6,512,370 for six times as indicated below.

A person shall be appointed.

C. The Defendant’s disposition 1 of this case) is working at “E” (hereinafter “instant workplace”) operated by D from May 2016 by the Plaintiff from Gyeongbuk-gun, Seongbuk-gun, Gyeongbuk-gun, the Defendant confirmed that the Plaintiff was working in the instant workplace through an on-site investigation on July 29, 2016.

2) Accordingly, the Defendant, on the ground that the Plaintiff was found to have received unemployment benefits by fraud or other improper means, requested the Daegu Seo-gu Police Station to investigate the Plaintiff’s violation of the Employment Insurance Act, and received notification from the Daegu Seo-gu Police Station on October 28, 2016 that the Plaintiff was suspected of committing a crime and sent the Plaintiff to the Seo-gu District Public Prosecutor’s Office as a prosecution opinion.

3) From July 1, 2016 to October 12, 2016, the Defendant: (a) restricted the payment of unemployment benefits to the Plaintiff on November 22, 2016 pursuant to Articles 61 and 62 of the Employment Insurance Act on the ground that “the Plaintiff provided labor at the instant workplace without reporting the fact that the Plaintiff provided labor; and (b) was paid the aggregate of the amount of unemployment benefits 4,949,410 won from July 1, 2016 to October 12, 2016; and (c) imposed a disposition of less than KRW 9,464,660 [the sum of the amount of unemployment benefits illegally received and additionally collected and collected and additionally collected” [the sum of the amount of unemployment benefits 4,949,410 won + the amount of additional collection KRW 4,515,250 won (781,488 won daily wage 43,416 won to July 1, 2016; and (d) 3737,708.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3 (including each number; hereinafter, the same shall apply), Eul evidence 1 through 15, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

From July 2017, the Plaintiff had attempted the instant workplace to probl the D’s work, but is not employed at the instant workplace. Nevertheless, the Defendant deemed the Plaintiff to have been employed at the instant workplace during the period of unemployment benefits, and thus, the instant disposition should be revoked as it is illegal as it misleads the Plaintiff about the fact that the instant disposition was taken.

B. Relevant statutes

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

In full view of the above evidence and the purport of the whole pleadings, the following facts are recognized.

1) Around July 29, 2016, B informed the Defendant that the Plaintiff was working in the instant workplace from May 2016. The Defendant visited the instant workplace to confirm the fact that the Plaintiff was working in the instant workplace, and denied the employment fact that the Plaintiff was working in the instant workplace to the effect that the Plaintiff did not receive daily allowances by requesting that the Plaintiff was unable to seek a person. Accordingly, the Defendant requested the Daegu Western Police Station to investigate the Plaintiff on charges of violating the Employment Insurance Act.

2) The Plaintiff stated in the police investigation as follows.

D와 친하게 지내면서 아침, 저녁으로 내 집처럼 드나들면서 바쁠 때에는 일을 도와준 것일 뿐, E에서 일용 근로를 한 사실은 없다.○ 2017, 7. 초순경 D의 시어머니가 많이 편찮으셨는데, D가 저에게 E 가게 내의 카운터에서 계산을 좀 해달라고 부탁하였고, 그때 특별히 하는 일도 없었기 때문에 그때부터는 E에서 일을 한 것은 맞다.○ 2016. 10. 12. 실업급여 1,302,480원을 마지막으로 지급받았는데, 그때까지 E에서 일을 도와주었다.2016. 7. 1.부터 2016. 10. 12.까지 매일 나가서 일을 도와주었다고 보면 된다. 카운터를 보기도 하고 서빙도 하고 김밥도 말고 이런 저런 일을 하였다.일당은 전혀 받은 것이 없고 또 받을 생각도 하지 않았다.○ 제가 F식당(이전 사업장)에 다니면서 4대 보험을 넣은 목적 자체가 이렇게 일을 하지 못할 경우에 실업급여를 받기 위해서였고 또 제가 E에 일을 도와주고는 있었지만 꼭 일당을 받지 않더라도 실업급여를 받고 있었고 D가 저에게 일을 도와달라고 부탁하는 이유를 뻔히 알기 때문에 별도로 일당을 받을 생각을 하지 않았다. 그리고 D가 저에게 일당이나 월급을 준다고 하였지만 제가 받지 않는다고 하면서 '지금은 괜찮으니까 나중에 실업급여 끝나고 형편이 어려워지면 지금내가 도와준 거 참작해라 라고 말하였고 D도 알았다고 하여 돈을 받지 않았다.

After receiving ○ unemployment benefits, there is no legal problem after the last day, so that 30,000 won per day will be received a daily day from 7:0 p.m. to 12:00 p.m. a day.

3) After investigating the Plaintiff, on October 27, 2016, the Daegu Western Police Station sent the case to the Seo-gu District Prosecutors’ Office with the prosecution opinion. On November 28, 2016, the prosecutor in charge requested the Plaintiff to issue a summary order of KRW 5 million to the Seo-gu District Court Branch of the Daegu District Court, and issued a summary order.

4) The Plaintiff filed a request for a regular trial on the above summary order with the Seogu District Court 2016 High Court 2016 High Court 1152. On June 30, 2017, the said court acquitted the Plaintiff on charges of violating the Employment Insurance Act. 2)

D. Determination

1) Relevant legal principles

A) According to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the Employment Insurance Act, an eligible recipient shall report to the head of an employment security office, stating the fact on the first application for unemployment recognition submitted after the date he/she provided labor during the period subject to unemployment recognition. According to Article 61(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits. According to Article 61(2) of the Employment Insurance Act, the act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Employment Insurance Act constitutes “an act of receiving unemployment benefits by fraud or other improper means.” In such cases, the head of an employment security office may order the return of all or part of the job-seeking benefits already paid pursuant to Article 62(1) of the Employment Insurance Act, Article 105(1) of the Enforcement Rule of the Employment Insurance Act

Meanwhile, Article 47(1) of the Employment Insurance Act, Article 69(2) of the Enforcement Decree of the same Act, and Article 92 of the Enforcement Rule of the same Act, concerning whether the provision of labor constitutes employment, where the provision of labor is set at 60 hours or more (including cases where the prescribed working hours per week are set at 15 hours or more) and the provision of labor is made as a daily worker under Article 2 subparagraph 6 of the Employment Insurance Act, where the provision of labor is made as a daily worker, regardless of the name such as wages, etc. in return for the provision of labor, where the provision of labor is received at least a daily amount of job-seeking benefits regardless of the name such as wages, etc., the case where it is deemed difficult to be employed ordinarily by engaging in the business such as commercial, etc., including the unpaid domestic workers, or by participating in the business of another person, and the case where the provision of labor is recognized as being employed under social norms. Thus, it is not required to the extent that the provision of labor is the same as employment.

B) The facts acknowledged in the judgment in a related criminal case are important evidence in the administrative trial unless there are special circumstances. However, if it is deemed difficult to adopt a factual judgment in light of other evidence submitted in the administrative trial, it may be rejected. Furthermore, the conviction in a criminal trial means that there is a proof that the judge has a conviction to the extent that the facts charged are excluded from a reasonable doubt, and on the other hand, the verdict means that there is no such proof, and it does not mean that the absence of the facts charged is proven (see, e.g., Supreme Court Decisions 9Da41657, Jun. 11, 200; 2008Da72660, Jan. 30, 2009).

2) Specific determination

In full view of the following circumstances revealed from the aforementioned legal principles and facts recognized earlier, the Plaintiff provided labor at the instant workplace during the period subject to unemployment recognition, and received unemployment benefits without reporting it to the Defendant. Therefore, the Plaintiff’s aforementioned assertion on a different premise is without merit.

A) From July 1, 2016 to October 12, 2016, the Plaintiff performed an act, such as ice ice ice or ice booming at the instant place of business every day. The foregoing day constitutes an ordinary duty if an employee is employed in the instant place of business and provides labor.

B) On and after October 12, 2016, the Plaintiff recognized that the Plaintiff provided labor and received fixed wages after being employed in the instant workplace. However, the Plaintiff’s unemployment benefits benefit period changed before and after October 12, 2016 is terminated on October 12, 2016, and the Plaintiff’s form of provision of labor or the type of work does not change.

C) The Plaintiff asserts that the daily allowance or wage from D was not paid at all during the above period. However, as seen earlier, even if the provision of "work" subject to reporting under Article 47 (1) of the Employment Insurance Act does not demand to the same extent as "work" under the law, it is not any obstacle to the provision of the above "work". Even if the provision of "work" is not required under the same concept as "work" under the law, it is necessary for the Plaintiff to pay as consideration in consideration of the same concept as "work", it is very unusual that the Plaintiff was not paid at all from D even though he had worked every day in the instant workplace for about three months or longer, and it is difficult to believe that the Plaintiff and D were receiving unemployment benefits, and thus, it can be deemed that the Plaintiff agreed to compensate for it in an appropriate way after the Plaintiff's unemployment benefits payment period was completed, and thus, it is difficult to see that the Plaintiff's assertion that the above provision of work was not paid at any time.

D) While applying for eligibility for employment insurance, the Plaintiff received an employment desired card through the unemployment benefits briefing session, and received various education on the case of unjust receipt and disadvantage when detection. Moreover, the Plaintiff received unemployment benefits by October 12, 2016, on the grounds that the Plaintiff received unemployment benefits by October 12, 2016, and then received unemployment benefits by October 12, 2016, the Plaintiff appears to have received daily allowances on the grounds that the Plaintiff received unemployment benefits by October 12, 2016. As such, the Plaintiff was aware that the act of providing employment services before October 12, 2016 constitutes a fraudulent act.

E) Job-seeking benefits are in a state of being unemployed and are required to be actively engaged in reemployment (Article 40 of the Employment Insurance Act). Since the Plaintiff did not actively endeavor to re-employment after July 1, 2016, the Plaintiff failed to meet the requirements for receiving job-seeking benefits.

F) Although the first instance court on the charge of violating the Employment Insurance Act against the Plaintiff (Seoul District Court Branch Branch Decision 2016Da1152), the legal principles on the probative value of evidence were applied differently, criminal trials and administrative trials are different. The court in charge of administrative trials can reasonably review the contents of evidence submitted in the administrative trials and determine the facts of the relevant criminal judgment. Thus, this court is not bound by this court, as a matter of course, in full view of the Plaintiff’s demand and supply of unemployment benefits and labor, and the relationship between the Plaintiff and D, the fact that the Plaintiff provided labor at the instant workplace during the period of unemployment benefits.

3. Conclusion

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

Judges

Judges of the presiding judge;

Judges Lee Jae-ran

Judge Park Sang-hoon

Note tin

1) Article 62(1) of the Employment Insurance Act, where job-seeking benefits have been received by fraud or other improper means, all of such job-seeking benefits.

Ordering the return of any or part of the job-seeking benefits and further collecting an amount not exceeding that equivalent to the amount of job-seeking benefits

In the case of a return order, the defendant ordered the full return of the amount of job-seeking benefits paid during the period for recognition of unemployment, but added

In collection, only the amount of job-seeking benefits corresponding to the period of providing labor during unemployment recognition is additionally collected.

In the case of the recognition period from June 21, 2016 to July 18, 2016 (Attachment 3), the period during which the plaintiff actually provided labor is July 2016.

1. From July 18, 2016, the Defendant issued an order to return all of the amount of job-seeking benefits paid during the period for recognition of unemployment, 1,215,640 won.

On the other hand, additional collection is equivalent to the amount of job-seeking benefits corresponding to July 1, 2016 to July 18, 2016, which the Plaintiff provided labor during the period of unemployment recognition.

781,480 won was collected additionally.

2) On July 4, 2017, the prosecutor appealed to the above judgment and submitted a petition of appeal.