(영문) 대구지방법원 2020.2.5. 선고 2019구합875 판결

The Defendant’s order of return of unemployment benefits and disposition of additional collection made against the Plaintiff on October 311, 2018 is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff filed an application for recognition of eligibility for employment insurance with the Defendant on June 13, 2016 on the ground that he/she retired from employment while working in Company B until May 31, 2016, and received job-seeking benefits of KRW 7,814,840 over seven times from June 20, 2016 to December 16, 2016.

B. From June 2018 to December 2016 of the same year, the Defendant was informed that “the Plaintiff was engaged in job-seeking benefits by lending the Plaintiff’s former wife C and D, an activity assistant under the Act on Activity Support for Persons with Disabilities from around June 2016 to December 2, 2016.” As a result of the investigation, the Defendant issued an order to restrict the payment and return of unemployment benefits (amounted to KRW 7,814,840, additionally collected, additionally collected, collected, collected, and returned KRW 7,814,814,840, totaling KRW 15,629,680) on October 31, 2018 on the ground that the Plaintiff was found to have received unjust payment (hereinafter “instant disposition”).

D. On January 30, 2019, the Plaintiff dissatisfied with the instant disposition, filed a request for examination with an employment insurance examiner on January 30, 2019, but the said request was dismissed on April 16, 2019.

【Fact-finding without dispute over the ground for recognition, Gap evidence 1, Eul evidence 1 through 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff was in an economic difficult situation and provided activity assistants with the introduction of activity activity for C and D so that they could be punished for living expenses. In extenuating circumstances, the plaintiff did not have been employed as activity assistants, and there was no wage received.

In particular, the plaintiff agreed to pay a monthly wage to the representative director of E Co., Ltd. (hereinafter referred to as "E") at the time of the company's normalization, and worked 2 to 3 times a week as E's legal director (unpaid).

Nevertheless, the defendant has taken the disposition of this case on the premise that the plaintiff was employed as an assistant.

B. Relevant provisions

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

C. Relevant regulations and legal principles

1) Article 40(1) of the Employment Insurance Act provides that "In order to receive job-seeking benefits, the insured who has retired from employment must be in a condition that he/she is unable to find a job despite his/her intent and ability to work," and Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 29913, Jun. 25, 2019; hereinafter the same shall apply) provides that "if a beneficiary has worked during the period for which he/she wishes to obtain recognition of unemployment, he/she shall file an application for the recognition of unemployment which is submitted to the first unemployment recognition date and file a report thereon." Article 40(2) provides that "The criteria for determining whether the provision of labor under paragraph (1)

2) Article 92 of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 237, Dec. 31, 2018; hereinafter the same shall apply) provides that "Where a person provides his/her service for at least three consecutive months for the purpose of his/her occupation for the purpose of life (Article 237 of the Employment Insurance Act); where a person receives at least the daily amount of job-seeking benefits under Article 46 of the Act regardless of the name, such as wage, etc. for the provision of employment (Article 46 of the Act); where a person is engaged in a family business, such as commerce, agriculture, etc. (including unpaid family workers), or where it is deemed difficult for him/her to ordinarily find employment for another business by providing his/her service by participating in another person's business (Article 69 (2) 5), or where it

3) Article 62(1) of the Employment Insurance Act provides that the head of an employment security office may order a recipient of job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits he/she has received, and in addition, he/she may collect an amount equivalent to or less than the amount of job-seeking benefits received by fraud or other improper means in accordance with the guidelines

Here, “false or other unlawful means” generally refers to any unlawful act committed by an ineligible person in order to conceal eligibility for benefits, such as pretending to receive benefits or having no eligibility for benefits, such as employment or income-generating, and refers to active and passive acts that may affect the recognition of eligibility for benefits and the decision-making on the payment of job-seeking benefits (see, e.g., Supreme Court Decision 2011Du7175, Jun. 13, 2013).

D. Determination

In light of the above provisions and legal principles, in light of the following facts and circumstances, the evidence mentioned above, and evidence stated in the evidence Nos. 8 through 33 as well as the whole purport of the pleading, the plaintiff can be deemed as having been employed under Article 92 of the Enforcement Rule of the Employment Insurance Act by providing labor as F, G, H's assistants, and E's legal director during the period of job-seeking benefits, and the plaintiff could have been paid job-seeking benefits by failing to report this fact to the defendant. Accordingly, the disposition of this case is lawful, and the plaintiff's assertion is without merit.

1) According to the documents submitted to the I Center (hereinafter “I Center”) and the J Center (hereinafter “J Center”), the Plaintiff’s former wife C is written from June 1, 2016 to December 20 of the same year as disability recipients F and G assistants at the I Center, and the Plaintiff’s children D from September 1, 2016 to December 28 of the same year as disability recipients H assistants, respectively.

2) However, from June 1, 2016 to December 20 of the same year, the Plaintiff, at F and G’s house, led the recipients to take charge of major care duties, such as bathing and going out work, and prepared and kept the records of activity support allowances (action allowances) that should have been prepared by C and D in lieu of the records of activity support allowances (action allowances). The Plaintiff submitted to the I Center and the J Center respectively.

3) All the G mother’s caregivers living together with G were working as G’s assistants. C stated that there is no these accident, and C also began with the introduction of the Plaintiff at the time of the investigation into the instant case by the Defendant, but did not have to be married. However, F and G assistants were considered to have worked at the planning real estate office located in Ulsan around November 2016. In addition, C also stated that most of the benefits received as assistants were paid to the Plaintiff.

4) From September 5, 2016 to October 30, 2016, D attended the education for assistants (09:30-17:50) from September 5, 2016 to September 30, 2016, D was hospitalized in the hospital for each of the above periods, and it appears that the Plaintiff was working as an assistant assistant for H’s activities during each of the above periods, and H also stated that the Plaintiff was working as an assistant or under the name of an assistant.

5) The Plaintiff asserted that, from June 2016 to December 12, 2016, “it cannot be employed as an assistant for disabled persons since he worked 2 to 3 times a week.” According to the Plaintiff’s assertion, this constitutes “where it is difficult to find regular employment in another workplace by providing labor by participating in another person’s business and providing labor.”

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.