(영문) 전주지방법원 2019.4.10.선고 2018구합2343 판결

On January 9, 2017, the Defendant’s disposition of additional collection of the amount of irregular job-time subsidies and disposition of restriction on payment of subsidies shall be revoked.

Reasons

1. Details of the disposition;

A. On September 28, 2015, the Plaintiff submitted to the Defendant an application for participation in the work-based job creation support program and a project plan to newly create one office worker for five days a week and thirty hours working per week, based on the working conditions, and received approval from the Defendant for one person eligible for subsidies.

B. On January 1, 2015, when the Plaintiff newly hired B as a person eligible for a part-time job grant, the Plaintiff applied for a part-time job grant and received a total of KRW 6,300,000 from the Defendant three times from March 2016 to September 2016. On January 9, 2017, the Defendant issued an order to return the part-time job grant amounting to KRW 6,30,000,000,000,000,000 from March 1, 2017 to September 10, 2017, on the ground that “the fact that the Plaintiff was paid KRW 6,30,00,000,000,000 to the part-time job grant by means of falsely preparing and submitting the part-time work record, employment contract, etc. as if he/she were employed as a part-time worker” and Article 56 of the Enforcement Decree of the Employment Insurance Act (hereinafter “the instant disposition”).

D. On January 31, 2017, the Defendant registered the instant disposition notice to the Plaintiff, and the Plaintiff received the instant disposition notice on February 1, 2018.

E. On June 27, 2017, the Plaintiff appealed against the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission. However, on May 25, 2018, the Central Administrative Appeals Commission appears to have known that the Plaintiff was subject to the instant disposition on February 1, 2017, and thereafter filed the instant administrative appeal on June 25, 2017, 90 days thereafter, the instant administrative appeal was unlawful in violation of Article 27 of the Administrative Appeals Act, rendering a ruling dismissing the Plaintiff’s appeal.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 6 through 8, Eul evidence Nos. 2 through 5, 8 through 11, and the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's main defense

Since the Plaintiff filed the instant lawsuit after the lapse of 90 days from the date of becoming aware of the instant disposition, and one year from the date of the instant disposition, the instant lawsuit is unlawful as its filing period has expired.

B. Determination

1) Relevant legal principles

Article 20 (1) of the Administrative Litigation Act provides that "a revocation lawsuit shall be instituted within 90 days from the date when the person becomes aware of a disposition, etc.: Provided, That where the proviso of Article 18 (1) is provided for in other cases where an administrative appeal may be filed, or where an administrative agency has falsely notified that a request for administrative appeal may be filed, the period from the date when the original copy of the written ruling is served, and Article 27 (1) of the Administrative Appeals Act provides that "the administrative appeal shall be filed within 90 days from the date when the person becomes aware of the disposition."

In full view of the above provisions, ① a revocation suit shall be instituted within 90 days from the date when the relevant administrative disposition becomes known when the method of filing a revocation suit is selected immediately with the knowledge of the relevant disposition; ② a revocation suit shall be instituted within 90 days from the date when the relevant disposition is known and a written adjudication on the relevant administrative appeal is served within 90 days from the date when the relevant disposition becomes known (see Supreme Court Decision 201Du18786, Nov. 11, 201; Supreme Court Decision 201Du18786, Apr. 24, 2011).

Meanwhile, “The date when the other party becomes aware of the existence of a disposition, etc., which is the starting point of the filing period of a lawsuit as prescribed by Article 20(1) of the Administrative Litigation Act” refers to the date when the other party becomes aware of the existence of the relevant disposition, etc. by means of notice, public notice or other methods. Thus, when the other party becomes aware of the existence of an administrative disposition by notifying the other party of such fact, the filing period as prescribed by Article 20(1) of the Administrative Litigation Act shall be deemed to run. If the other party becomes aware of the existence of the disposition, such as the service of the written disposition to the domicile of the other party, etc., in a case where the other party becomes aware of the existence of the disposition, then it may be presumed that the other party was aware of the disposition unless there is any counter-proof (see, e.g., Supreme Court Decisions 9Du9742, Dec. 28, 19

2) Determination

In light of the above legal principles, the health department, the defendant issued the instant disposition to the plaintiff on January 9, 2017; the plaintiff received the notice of the instant disposition on February 1, 2017; the plaintiff filed a petition for administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission on June 25, 2017, which is apparent that 90 days have passed from the plaintiff; and the plaintiff filed the instant lawsuit with the Central Administrative Appeals Commission on September 10, 2018, clearly stated in the records. Accordingly, it is reasonable to deem that the plaintiff was aware of the instant disposition on February 1, 2017. Accordingly, the Plaintiff filed the instant lawsuit seeking revocation of the instant disposition on September 10, 2018, which is apparent that 90 days have passed, and thus, the instant lawsuit was unlawful as it was filed after the filing of the lawsuit and the filing period of the lawsuit.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.