(영문) 서울행정법원 2013.1.31. 선고 2012구합10413 판결

The Defendant’s order for return of unemployment benefits and disposition for additional collection against the Plaintiff on January 25, 2011 shall be revoked.

Reasons

1. Details of the disposition;

A. On January 4, 2010, the Plaintiff filed an application for recognition of eligibility for employment insurance with the Defendant. The Plaintiff received 90 days of the fixed benefit payment days, 28,800 won for job-seeking benefits, and 2,592,000 won for job-seeking benefits from January 11, 2010 to April 10 of the same year, as follows.

A person shall be appointed.

C. On January 25, 2011, the Defendant issued an order to return the illegally received amount of KRW 1,958,400 (68 days from February 2, 2010 to April 10, 201) and issued an order to return the amount of KRW 403,200, the sum of the illegally received amount of KRW 2,361,600 and the additional collection of KRW 1,958,400 (100% of the illegally received amount of KRW 1,958,40) to the Plaintiff on the ground that “the Plaintiff failed to report his/her business registration but omitted employment.” (hereinafter “instant disposition”).

C. On April 19, 2011, the Plaintiff filed a request for review with an employment insurance examiner against the instant disposition. On June 5, 2011, the employment insurance examiner dismissed the Plaintiff’s request for review. On September 7, 2011, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee. The Employment Insurance Review Committee dismissed the Plaintiff’s request for reexamination on October 27, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 7 evidence, Eul evidence 1 and 3, and the purport of the whole pleadings

A. The plaintiff's assertion

While the Plaintiff had been registered as a licensed real estate agent's office in the name of the Plaintiff during the period of unemployment recognition from the Defendant, the Plaintiff was unable to conduct any business activities during the above period due to the Plaintiff's reduction of B in Seoul Southern Detention House every day, and the Plaintiff was unable to conduct its business due to the shock of the above case even after B was released, and the Plaintiff did not generate any income until the expiration of the period of unemployment recognition. The above licensed real estate agent's office was in fact in the business closure. Therefore, even if the Plaintiff did not report the business registration to the Defendant, it cannot be deemed that the Plaintiff received unemployment benefits by falsity or other unlawful means.

B. Relevant statutes

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

1) On June 22, 2010, the Plaintiff registered the business as a real estate agent office and a real estate agent office on February 2, 2010, and reported the closure of business on July 7, 2010 of the same year.

2) From February 2010 to April 12 of the same year, the Plaintiff appeared at the Defendant branch office and prepared an application for unemployment confirmation, and stated that there was no fact of work and business registration during the period subject to unemployment recognition in relation to verification of unemployment.

3) The Plaintiff’s ASEAN was detained on December 30, 2009 and was released from Seoul Southern Detention Center on March 16, 2010. The Plaintiff visited the Seoul Southern Detention Center on 25 occasions from February 2, 2010 to March 16, 201, and visited B. The C Licensed Real Estate Agent Office registered as the Plaintiff was in Seocheon-gu, Seocheon-gu, Seoul, and the Seoul Southern Detention House was in the 15.3km of the distance, and the time required was approximately KRW 21 minutes. 4) The Defendant attended the Defendant’s branch office in order to investigate the instant disposition and presented his opinion to the Plaintiff, and the Plaintiff did not submit his opinion to the Plaintiff regarding the instant disposition by publication, and the Plaintiff did not request the Plaintiff to submit his opinion to the branch office in the form of notification and notification, and the Plaintiff did not request the Plaintiff to submit his opinion to the Plaintiff on 10 months.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 2 to 8, the purport of the whole pleadings

D. Determination

1) Article 40(1)2 of the Employment Insurance Act provides that "in a situation where job-seeking benefits (including where a person engages in a for-profit business) are not available despite his/her intent and capabilities, one of the requirements for receiving job-seeking benefits." Article 47(1) of the same Act provides that an eligible recipient shall report the fact to the head of an employment security office if he/she provides or starts up a job during the period of unemployment eligibility. In addition, Article 61 of the Employment Insurance Act provides that "the person who has received or attempted to receive unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date when he/she received or attempted to receive such benefits (Article 47(1)), and that "job-seeking benefits shall not be paid only for the period subject to unemployment recognition (Article 47(1)), such as a false report or false report." Article 62(1) of the same Act provides that "The head of an employment security office may order the recipient of job-seeking benefits by fraud or other improper means to return all or any other unlawful means."

2) In full view of the following circumstances known from the above facts, it is reasonable to view that the Plaintiff constitutes a case where unemployment benefits are paid by fraud or other improper means under Article 61(1) of the Employment Insurance Act. The instant disposition grounds are recognized. The Plaintiff’s assertion is without merit.

A) Article 47(1) of the Employment Insurance Act provides that an eligible recipient shall report the fact to the head of an employment security office when he/she provides labor or starts up a business during the period subject to the unemployment recognition. However, even though the Plaintiff started a business by opening a C Licensed Real Estate Agent’s Non-office in his/her name from February 2, 2010 during the period subject to the unemployment recognition, the Plaintiff breached its duty to report under Article 47(1) of the Employment Insurance Act by failing to report the fact to

B) Although the Plaintiff visited the Seoul Southernnam Detention House 25 times from February 2, 2010 to March 15, 2010, there are circumstances that the Plaintiff visited the Seoul Southern Southern Detention House 25 times, the distance between the C Licensed Real Estate Agent Office and the Seoul Southern Detention House is less than 15 meters and it is also limited to the visit time of the detention house. The Plaintiff opened the licensed real estate agent office on February 2, 2010, after the detention on February 2, 2010, after B was detained on February 2, 2010, and after March 16, 2010, there is no such circumstance as above. In light of the above, it is insufficient to recognize that the Plaintiff was entirely not conducting the real estate brokerage business solely on the ground that the Plaintiff visited part of the Plaintiff during the period subject to recognition of unemployment.

C) It cannot be readily concluded that the Plaintiff failed to report sales during the period subject to unemployment recognition at the competent tax office. Moreover, even if the Plaintiff was unable to obtain income through real estate brokerage from February 2, 2010 to April 10 of the same year, it is sufficient to recognize that the Plaintiff was starting a business during the period subject to unemployment recognition, based on the above-mentioned facts. Considering that the Plaintiff’s new opening of the C Licensed Real Estate Agent Office is under the period subject to unemployment recognition, it is difficult to readily conclude that the said Licensed Real Estate Agent Office was in a de facto discontinuance of business during the period subject to unemployment verification.

D) The Plaintiff presented an opinion to the effect that, even though the Defendant requested to present his opinion on the instant disposition several times before rendering the instant disposition, the Plaintiff would pay the amount of illegal receipt and additional collection for 12 months on January 21, 201, on the premise that the Plaintiff would not present any opinion on the instant disposition, but did not present any assertion on the fact that the Plaintiff did not actually engage in the real estate brokerage business.

3. Conclusion

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