(영문) 전주지방법원 2011.9.27. 선고 2011구합1129 판결

1. The Defendant’s decision to recover the new employment promotion subsidy granted to the Plaintiff on May 24, 2010 is revoked. 2. Costs of lawsuit are borne by the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff (Representative B) is a company running convenience points (D) in Seojin-gu Seoul Special Metropolitan City. B. On November 9, 2007, the Plaintiff received new employment promotion subsidy from the Defendant on the ground that Nonparty E was newly employed.

A person shall be appointed.

C. On May 24, 2010, the Defendant issued a disposition to recover 4,500,000 won of the new employment promotion subsidy already paid to the Plaintiff on the ground that “E is a wife of the Plaintiff’s representative director B, and it is possible to find employment even if there is no support for job security agencies, etc. and employment security incentives among relatives. Therefore, under the ordinary conditions of the labor market stipulated in Article 23 of the Employment Insurance Act, E cannot be considered as a person who is particularly difficult to find employment, and is not subject to new employment promotion subsidy” (hereinafter “instant disposition”).

D. On August 23, 2010, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the administrative appeals commission under the Prime Minister on the Prime Minister on the ground that the appeal was dismissed on January 11, 2011. 【Ground for recognition” without any dispute, written evidence Nos. 2, 4-1, 5-1, 5-2, and the purport of the entire pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff was actually employed as unemployed for not less than 29 years of age and not more than 3 months through the intermediation of the former Employment Center, the Defendant’s deeming that the Plaintiff was paid a bounty by false or other unlawful means solely on the ground that the Plaintiff was a relative of the representative director of the Plaintiff and thus, was unlawful.

(b) Fact of recognition;

1) As the wife of the Plaintiff’s representative director B, E (FF) was a person who was unemployed for more than three months from July 13, 2007, and was registered for the first time on the Internet websitenet (www. Work.go.gor; hereinafter “Worknet”) falling under Article 26(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same).

2) The former Employment Center arranged the Plaintiff to employ E on October 29, 2007, and the Plaintiff employed E as the Plaintiff’s employee from November 9, 2007 to April 30, 2009.

3) On December 13, 2007, the Plaintiff applied for a new employment promotion subsidy to the Defendant on the ground that he was newly employed as a person under 29 years of age and under three months of unemployment. At the time, the Defendant investigated whether the Plaintiff’s representative director B and E are related to the Plaintiff, and knew that E was the wife B, but upon confirmation that E was actually in work at the Plaintiff’s workplace, the Plaintiff paid a new employment promotion subsidy through 12 times as seen earlier.

【Ground of recognition】 The fact that there is no dispute, entry of Eul Nos. 2, 4, 8, and 9 (including each number), the purport of the whole pleadings

It is as shown in the attached Table related statutes.

D. Determination

1) Whether the employer and the newly employed unemployed are excluded from the subject of the subsidy in cases of kinship

A) Article 23 of the Employment Insurance Act provides that "the Minister of Employment and Labor may provide necessary assistance to a business owner who newly employs the aged, etc. in order to promote employment of those who have particular difficulty in finding employment (hereinafter "seniors, etc.") under the ordinary conditions of the labor market, such as the aged, etc., as prescribed by Presidential Decree." Article 26 (1) of the former Enforcement Decree of the Employment Insurance Act delegated by the Minister of Employment and Labor provides that "the business owner who newly employs the unemployed persons in excess of the period of unemployment by the subject under attached Table 1, through the referral of the employment security office, etc., and who newly employs the insured workers through the referral of the employment security office, etc., for the period from three months before the employment to twelve months after the employment, has specified the reasons for exclusion from the payment through Article 44 (3) and (4) of the Enforcement Rule of the Employment Insurance Act, but there was no specific ground for exclusion from the payment of the new employment promotion subsidy to the Defendant from the employment security office for reasons of the Plaintiff’s employment promotion by marriage or 34th.

B) In light of the legal nature (law and order), form, system, and language of the above statutory provisions, the payment of the incentive to the business owner's request for the payment of the incentive to the extent that the above statutory provisions meet all the eligibility requirements under Article 26 (1) of the Enforcement Decree and Article 44 of the Enforcement Rule is an act of compulsory performance with no discretion of the administrative agency. Thus, the plaintiff's representative director and E's relationship between the representative director and E shall not be excluded from the payment of the new employment promotion incentive solely on the ground that E is a relative of the representative director at least when the application for the new employment promotion incentive at issue was made in this case.

2) Article 35 of the Employment Insurance Act provides that "A person who has received subsidies by fraud or other improper means may be restricted to support or may be ordered to return money already received from the person who has received subsidies for employment security activities by fraud or other improper means, and in addition, "the amount may be collected not exceeding five times the amount received by such fraudulent or other improper means" as part of each of the above sanctions is generally passive acts that can affect the decision-making on the payment, etc. of subsidies and grants, which are conducted by the business owner who is not entitled to receive subsidies, incentives, etc., or by fraudulent or other improper means as part of the measures for employment security, and in addition, "the fraudulent or other unlawful means" means all fraudulent acts that are conducted in order to pretend the qualification of the business owner who is not entitled to the subsidies, incentives, etc., or to reduce the lack of qualification, as determined in the above paragraph (1) (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

3) Whether an employment security office is not hired by an arrangement

A) Article 26(1) of the former Enforcement Decree of the Employment Insurance Act, which was enforced by the Plaintiff at the time of applying for a new employment promotion subsidy to the Defendant on December 13, 2007, provides that “a business owner who newly employs a person in a state of unemployment exceeding the period of unemployment by a person eligible for employment specified in the attached Table 1 of the same Decree, shall pay a new employment promotion subsidy to the business owner who newly employs the insured

B) In light of the above, Article 26(1) of the Enforcement Decree of the Employment Security Office as the requirement for the payment of incentives to the effect that the job offerer is entitled to the new employment as the insured through the referral of the employment security office, etc. is to prevent the job offerer from receiving the incentives as if the job offerer had already employed a person who is capable of being employed even under ordinary conditions, or the job offerer and the job seeker had already been in consultation on employment even after the job placement had already been in progress, and even if the job placement consultation was later conducted between the job offerer and the job seeker, it cannot be concluded that the newly employed unemployed and the job offerer would not be entitled to the incentives only if it is evident that there was no employment arrangement before the job placement agency. Rather, it is reasonable to understand to the purport that the job offerer would prevent the situation of receiving the incentives by pretending a person who is not a job-seeking situation, such as the newly employed person, as the job-seeking one,

However, as seen in the above facts, as long as E is unemployed through the referral of the employment security office, etc. and actually provided the Plaintiff with labor, there is no ground to view that E as a system of representative director of the Plaintiff, which was well known before the intermediation of the employment security office, does not constitute a new employment of the insured through the referral of the employment security office, etc.

4) Sub-committee

Ultimately, since the Plaintiff cannot be deemed to have received new employment promotion subsidy by fraud or other improper means under Article 35 of the Employment Insurance Act, the instant disposition based on the premise of other statutory interpretation and fact-finding is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.