(영문) 서울고등법원 2017.6.21. 선고 2016누76055 판결

A. The Plaintiff is a juristic person that concludes an employment agency contract with a job seeker who wants to be employed overseas, and operates an overseas employment agency contract with a job offerer overseas including Canada and Australia to arrange the formation of an employment contract.

B. A, B, and C (hereinafter referred to as “A, etc.”) who entered into an employment agency contract with the Plaintiff, filed a civil petition on or around May 2015 or June 2015 on the ground that the Defendant violated the Employment Security Act because the Plaintiff received the money from A, etc. and did not comply with the demand for refund.

C. On August 25, 2015, the Defendant rendered a disposition of “one month of business suspension” (hereinafter “instant disposition”) on the ground that “the Plaintiff, in the course of arranging employment overseas to A, etc., violated the provisions related to the Employment Security Act and received the introduction fee, etc. prior to the conclusion of the employment contract” (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Article 25 Subparag. 6 of the Enforcement Decree of the Employment Security Act provides that fees under Article 19(3) of the Employment Security Act shall be paid after a job seeker’s labor contract is concluded, limiting the timing of receiving fees that are not mentioned in the mother law. This is an unconstitutional provision beyond the scope of delegation by the mother law.

2) The Plaintiff did not receive a referral fee pursuant to Article 19(3) of the Employment Security Act and the Public Notice of Overseas Paid Job Placement Fees, etc. (Notice No. 2010-4, Jan. 13, 2010; hereinafter “Public Notice”) where the Plaintiff entered into an employment visa agency contract with A, etc. and received a speed-free agency fee from A, etc. to act as an agent for them.

3) In light of the fact that the Plaintiff had a high possibility of closure of business and the Plaintiff did not have any control over the violation of the Employment Security Act, the instant disposition was deviates from and abused discretion.

B. Relevant statutes

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

C. The reasoning for the lower court’s determination as to this part of Article 25 subparag. 6 of the Enforcement Decree of the Employment Security Act is as follows: (a) No. 2-C. (No. 3, No. 10, No. 5, and No. 18) of the judgment of the first instance is the same as that of the judgment of the first instance (No. 3, No. 10, No. 5, and No. 18), and thus, it shall be cited under

Article 19 (6) of the Enforcement Decree of the Employment Security Act is "Article 25 of the Enforcement Decree of the Employment Security Act".

D. Whether there is a ground for disposition as to the disposition of this case

1) Regarding A contracts

A) Facts of recognition

(1) On July 18, 2012, the Plaintiff entered into a contract with a local company A and A for the purpose of employment of the local company A and the acquisition of the Australian employment cost, and agreed as follows.

(A) The term of validity of the contract shall be from the time when the contract was completed to the time when A and the employment contract was completed (Article 2).

(B) A paid a total of 25,00 Australia to the Plaintiff as an agent fee, but at the time of the first-lane contract, USD 10,000 was determined in installments, and USD 15,000 was determined in two-lane 457 at the time of the application by the second-lane 457 visa. The total agency fee is classified into binding fees (the document agency fee necessary for employment and the 457 visa), domestic service fees (the job agency fee for Hoju employment cooperation, the submission of resumes, and the selection of training institutions), overseas service fees (the number of visas, education for obtaining various qualifications, employment, non-self-employed information, and other service expenses, etc.) (Article 6).

(C) Other expenses related to employment and acquisition of visa (e.g., document issuance cost, immigration receipt cost, physical examination cost, settlement cost, stamp, Australia medical insurance cost, aviation fee, etc.) were separately borne by A (Article 7). A agreed to refund the remainder of the expenses excluding “1.9 million won (speed) out of the expenses where the progress was interrupted due to the Plaintiff’s fault (Article 8).

(2) As indicated below, A deposited a total of KRW 35,323,80,00 by depositing KRW 6,060,00 to the Plaintiff on August 16, 2012 under the above contract. The Plaintiff remitted a total of KRW 33,117,750 to the cooperation companies of Australia and Canada, and the Australian partner prepared a receipt that the Plaintiff received USD 26,800 from the Plaintiff (Evidence 4-12).

A person shall be appointed.

[Based on the recognition] The evidence No. 4-1 to 12, Eul No. 4, 6, 11, 13, and 14, and the purport of the whole pleadings

B) Determination

In full view of the above facts and the following circumstances acknowledged by the aforementioned evidence, it is insufficient to deem that the Plaintiff was paid a placement fee prior to the conclusion of a labor contract, and there is no other evidence to acknowledge it.

(1) A paid USD 25,00 with a total of 25,000 subscription fees, domestic fees, and foreign agency fees. Other expenses were to be paid separately. It seems that USD 35,323,800 that A paid to the Plaintiff appears to correspond to USD 30,500. It appears that Australia’s partner company claims USD 8,350 with a single qualification fee and USD 1,040 with a single qualification fee of KRW 20,000 with a cost of KRW 457 visa, and the receipt thereof was issued (Evidence 4-1,12 of evidence 4). Further, in addition to the fact that A’s receipt was issued, USD 9,390 with a single qualification fee of KRW 39,390 with a single qualification fee of KRW 30,500 with a single license, it appears that the Plaintiff and A agreed to pay it as other expenses. It appears that the Plaintiff did not pay it to USD 3,8902 out of the amount agreed to.

(2) The amount deposited to the Plaintiff is mixed with agency fees and other expenses, and agency fees are also divided into continuous fees, domestic fees, and overseas fees, and the introduction fees are deemed to have been included among them.

(3) The Plaintiff asserts that USD 200 is kept to transfer to the Australian Cooperative at the time when the issuance of the visa is completed.

(4) It is difficult to view that the aforementioned facts alone contain the amount already paid by A to the Plaintiff or the amount stored by the Plaintiff on a base that does not clearly specify the amount of the introduction fee.

2) Regarding C Contracts

A) Facts of recognition

(1) On April 17, 2014, the Plaintiff entered into a contract with C and C to perform agency business in order to obtain employment of the local company in Australia and the acquisition of the family employment expenses for Australia, and agreed as follows.

(A) The term of validity of the contract was determined from the time of the preparation of the contract to the time of non-self-acquisition after C’s confirmation of employment (Article 2).

(B) C paid USD 35,00 to the Plaintiff with the total progress cost. At the time of the first-lane contract, USD 20,000 was decided to pay each of them to the Plaintiff, USD 5,000 was approved at the second-lane 457 visa, USD 10,000 was paid at the time of acquisition by the third-lane 457 visa (Article 6).

(C) Other expenses related to employment and acquisition of visa (e.g., document issuance expenses, immigration receipt expenses, physical examination expenses, settlement expenses, recognition expenses, family medical insurance expenses, aviation fees, etc.) were separately borne by C (Article 8). In the event the progress was interrupted due to the Plaintiff’s fault, C would return the remainder of the expenses excluding “1.9 million won (domestic speed expenditure)” (Article 7).

(2) As indicated in the following table, C paid KRW 19,540,000 to the Plaintiff on April 21, 2014 according to the above contract. The Plaintiff wired KRW 17,165,00 to Australia partner, and Australia partner received USD 17,500 from the Plaintiff (Evidence 5-4).

A person shall be appointed.

[Based on the recognition] The evidence Nos. 5-1 through 6, Eul No. 5, 6, 12, and 13, and the purport of the whole pleadings

B) Determination

In full view of the above facts and the following circumstances admitted by each of the above evidence, it is insufficient to deem that the Plaintiff received the referral fee before entering into the C’s labor contract, and there is no other evidence to acknowledge it.

(1) C did not pay USD 5,000, which was agreed to pay at the time of the contract, only KRW 20,000 as the first proceeding cost to be paid at the time of the contract.

(2) The Plaintiff asserted that USD 17,500, out of USD 20,000, was remitted to the Australian collaborative entity, and USD 2,500 was kept in order to transfer to the Australia collaborative entity at the time when the issuance of the visa was completed.

(3) It is difficult to view that the aforementioned facts alone contain the amount already paid by C to the Plaintiff or the amount that C keeps in custody of the Plaintiff, on the ground that the introduction fee is not clearly specified.

3) Regarding B contracts

A) Facts of recognition

(1) On February 18, 2014, the Plaintiff entered into a contract under which the Plaintiff would act as an agent in order to obtain employment and employment for a Canadian local company B and B, and agreed as follows.

(A) B concluded that USD 12,000 may be paid in lump sum at the time of a contract, or USD 6,000 at the time of a contract, or USD 6,000 at the time of AIT approval (Article 6).

(B) Other expenses, such as document issuance cost, immigration receipt cost, physical examination cost, settlement cost, application cost for qualification certificate, stamp fee, air fee, etc., were to be paid separately from postal expenses (Article 7). In any case, 1.9 million won is not refunded in the Republic of Korea paid at the time of a contract, and where the permission of a non-person was refused due to a cause attributable to the Plaintiff, a refund was to be made abroad (Article 8).

(2) As indicated below, B paid a sum of KRW 8,796,090 to the Plaintiff under the above contract, or paid the Plaintiff’s employees D in Canada, and the Plaintiff remitted expenses to the Canadian Cooperation Company.

A person shall be appointed.

(3) On December 2014, B filed a civil petition with the Defendant on the grounds that B had been employed in the place of “E” and had been employed in the place of “E” during the period of tra bargaining or that wages were less than those paid in Korea.

(4) On May 19, 2015, the Plaintiff sent to B, “B” on June 25, 2014, the amount paid to the Plaintiff was KRW 6 million ($ 6,315 applied to USD 950), and KRW 2,796,090 paid to D in Canada ($ 940 applied to USD 2,974). USD 1,500 paid to F is an English education fee in the local area where the Plaintiff paid to B, and the amount not paid to the Plaintiff is USD 3,211.

(5) On June 16, 2015, B, under investigation by the Defendant’s telephone call in Canada, stated to the effect that “B paid KRW 6 million to the Plaintiff in Korea, and paid KRW 4.5 million in addition to Canada (Evidence 2),” and argued to the effect that “B paid USD 2,796,090 to the Plaintiff’s employees D, and KRW 1,500 to F in the course of investigation by the Defendant’s e-mail” on December 17, 2014.

[Reasons for Recognition] Gap evidence 3-1 to 11, Eul evidence 1-1, Eul evidence 3, the purport of the whole pleadings

B) Determination

In full view of the above facts and the following circumstances admitted by the evidence as seen earlier, it is difficult to deem that the Plaintiff received the introduction fee prior to the conclusion of the employment contract B.

(1) B filed a petition by means of less than wages paid in Korea during the period of t bargaining, however, the Plaintiff’s introduction became final and conclusive and worked in Canada.

(2) Of USD 12,00, USD 3,211, Canada, which was to be paid at the time of the contract, was not yet paid to the Plaintiff.

(3) It is difficult to view that the instant facts alone contain the introduction fee on the money already paid by B to the Plaintiff on a ter where the introduction fee was not clearly specified.

4) Sub-committee

Therefore, the instant disposition is unlawful since it does not recognize the grounds for such disposition.

3. Conclusion

If so, the plaintiff's claim shall be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions. Accordingly, the plaintiff's appeal shall be accepted, and the judgment of the court of first instance shall be revoked, and the plaintiff's claim shall be accepted, and it

Judges

Mobilization by the presiding judge

Judges Kim Gin-han

Judge Lee Jae-soo

Note tin

1) A is a process of investigating by the Defendant’s e-mail with respect to a petition submitted by him and a process of pre-written tactical to Seoul Southern District Court 2015 High Order 4203

from this point of view that the amount of KRW 35,323,800 paid by it is equivalent to USD 25,000 (Evidence No. 4, 15), but the evidence No. 4-11,

According to the statements in No. 12 and No. 13 and the purport of the whole pleadings, the above assertion seems to be made by mistake.

2) While the Plaintiff asserted that USD 3,850 was not paid in the grounds of appeal, the Plaintiff’s assertion that the statement of evidence No. 14 and the purport of the entire pleadings are as follows.

It seems that USD 3,890 has not been paid.