2019Gudan51477 Revocation of Disposition of Restriction on the Payment of Unemployment Benefits and Return Order

A

The head of the Seoul Regional Employment and Labor Office Seoul East Site

July 11, 2019

August 29, 2019

1. The part concerning the revocation of the disposition for additional collection among the instant lawsuit is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of restricting the payment of job-seeking benefits against the Plaintiff on March 13, 2018, ordering the Plaintiff to return KRW 1,909,940, and imposing additional collection shall be revoked, respectively.

1. Details of the disposition;

A. The Plaintiff was a worker who worked for 'Seoul Seongdong-gu Seoul Company B', and was dismissed from the said workplace on September 20, 2017 on the ground of 'Unauthorized absence, unauthorized leave of absence, and unauthorized leave of absence'.

B. On October 11, 2017, the Plaintiff filed an application for recognition of eligibility for job-seeking benefits with the Defendant on October 25, 2017, and obtained recognition of eligibility for job-seeking benefits from the Defendant on October 25, 2017, and thereafter, the Plaintiff filed an application for recognition of eligibility for job-seeking benefits with the Defendant for multiple times as follows, and received job-seeking benefits corresponding to each period subject to recognition of unemployment from the Defendant, and received them from the Defendant for each period subject to recognition of unemployment (for each of the following sequence, each unemployment recognition is referred to as "○○ unemployment recognition," and each period

A person shall be appointed.

C. Meanwhile, the Plaintiff was employed from November 1, 2017 to November 4, 2017, which was included in the period subject to recognition of unemployment for the second time, to provide labor to the “E” located in Incheon-gu, Jung-gu, Incheon, for four days, and received a payment of KRW 400,000 on November 6, 2017.

D. On December 20, 2017, the third unemployment recognition date, the Defendant confirmed that the Plaintiff had subscribed to employment insurance for four days from November 1, 2017 to November 4, 2017, which was the period subject to the recognition of the second unemployment recognition (hereinafter referred to as the “instant restriction on the payment of job-seeking benefits”), and issued a disposition that restricts the payment of job-seeking benefits for the period subject to the recognition of the second unemployment recognition (hereinafter referred to as the “instant disposition”) on the ground of the Plaintiff’s failure to report employment for the Plaintiff on March 13, 2018, on the ground that the Plaintiff received the payment of the amount of KRW 1,909,940 as job-seeking benefits corresponding to the period subject to the recognition of the second unemployment recognition (hereinafter referred to as the “instant order of return”) (the instant disposition of restricting the payment of the job-seeking benefits and the instant order of return, and the instant disposition of the Plaintiff was a notice of one of the instant disposition (hereinafter referred to as the “instant disposition”).

E. The Plaintiff, who was dissatisfied with the instant restriction on the payment of job-seeking benefits and the instant order to return, requested an employment insurance examiner to examine the case. However, the Plaintiff was rendered a final decision dismissing the Plaintiff’s request for examination on June 20, 2018.

F. The Plaintiff again filed a request for reexamination with the Employment Insurance Review Committee, but a ruling dismissing the Plaintiff’s request for reexamination was rendered on October 10, 2018.

G. Accordingly, the Plaintiff filed the instant lawsuit on January 20, 2019.

[Grounds for recognition] The items of evidence Nos. 1 through 10, 17, and 20 through 23 and the purport of the whole pleadings;

On March 13, 2018, the Plaintiff sought revocation of the disposition of restricting the payment of job-seeking benefits of this case against the Plaintiff along with the instant disposition of return order. However, in full view of the written evidence No. 21 and the purport of the entire pleadings, the instant disposition may be acknowledged that the amount to be additionally collected by the Plaintiff was stated as “0 won”. Thus, the Defendant cannot be deemed to have issued a disposition of additional collection against the Plaintiff through the instant disposition. Accordingly, the part claiming revocation of additional collection among the instant lawsuit is a non-existent administrative disposition, and thus, is unlawful as there is no benefit of lawsuit.

3. Determination on the merits (whether the disposition of restricting the payment of job-seeking benefits in this case and the order to return in this case is legitimate)

A. The plaintiff's assertion

1) On February 1, 2018, the Plaintiff was present at the Seoul Eastern District Office of the Seoul Regional Employment and Labor Agency and was investigated as to the employment facts during the period of the second unemployment, and did not receive any notification to the effect that the Plaintiff may present his opinion pursuant to Article 27 of the Administrative Procedures Act before receiving a demand for attendance. In addition, the pertinent public official did not investigate with strong attitude, but shall confirm that the Plaintiff was employed during the period of the second unemployment recognition, and shall unilaterally compel the Plaintiff to sign the document to the effect that “the Plaintiff shall be deemed to have received a prior notification and waiver of his opinion.” This is without complying with the prior notification procedure under Article 21 of the Administrative Procedures Act and the procedures for submitting opinions under Article 27, and thus, the Defendant’s restriction on the payment of job-seeking benefits and the return order of this case constitutes a procedural violation that constitutes a ground for cancellation (hereinafter “Plaintiff’s assertion 10”).

2) As above, a public official in charge of investigating the Plaintiff did not notify the Plaintiff of the right to refuse to make a statement even though he/she performs his/her duties as a judicial police officer, and did not prepare an interrogation protocol in accordance with legitimate procedures. In this respect, the Defendant’s disposition of restricting the payment of job-seeking benefits in this case and the disposition of the return order in this case was erroneous in the procedure falling under the grounds for cancellation (hereinafter “Plaintiff’s assertion”).

3) On September 20, 2017, the Plaintiff was subject to unfair dismissal at “C,” and applied for unfair dismissal to the Labor Relations Commission in accordance with the Labor Standards Act. In other words, the Plaintiff was merely the position of returning to the original workplace after being in an unfair dismissal. Accordingly, the Plaintiff did not receive job-seeking benefits from the Defendant, but merely received the minimum cost of living in accordance with the purpose of the Employment Insurance Act aimed at stabilizing the workers’ livelihood, and there is no reason for disposition that the Plaintiff received job-seeking benefits by unlawful means (hereinafter “Plaintiff’s assertion”).

4) Article 4(3) of the Electronic Government Act provides that “Administrative agencies, etc. shall not require a civil petitioner to submit electronically verifiable matters through the sharing of administrative information.” The defendant may electronically verify whether a person applying for recognition of eligibility for job-seeking benefits has been employed in another workplace during the period for which he/she wishes to receive job-seeking benefits through an inquiry into whether he/she has subscribed to employment insurance. However, it is unreasonable to separately stipulate the obligation to report when he/she was employed during the period subject to verification of unemployment under Article 47(1) of the Employment Insurance Act. Therefore, it cannot be evaluated that the plaintiff was paid job-seeking benefits by unlawful means on the ground that he/she failed to fulfill his/her duty to report under Article 47(1) of the Employment Insurance Act (hereinafter referred to as “Plaintiff’s assertion”).

5) The Defendant stated in the instant disposition that “one of the grounds for the disposition in this case was “work for the ten-day period prior to the supply and demand” as one of the grounds for the disposition, but this does not constitute the Plaintiff. The Defendant’s disposition of restricting the payment of the job-seeking benefits in this case and of ordering the return of this case against the Plaintiff on the ground of an inappropriate disposition is unlawful and thus, must be revoked (hereinafter “Plaintiff’s assertion

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Judgment as to the Plaintiff’s assertion

A) First, on February 1, 2018, as to whether a public official in charge showed a strong attitude in the course of the Plaintiff’s investigation, or unilaterally forced the Plaintiff to sign a document, there is insufficient evidence to acknowledge that the above facts were true, and there is no other evidence to acknowledge otherwise.

B) Next, we examine whether the prior notification procedure under Article 21(1) of the Administrative Procedures Act and the procedure for submitting opinions under Article 27(1) of the same Act are unlawful.

Article 47(1) of the Employment Insurance Act provides that "if an eligible recipient has been employed during the period for which he/she wishes to obtain recognition of unemployment (hereinafter referred to as "period subject to verification of unemployment"), he/she shall report such fact to the head of an employment security office." Paragraph (2) of the same Article provides that "the head of an employment security office may, if deemed necessary, investigate employment facts during the period subject to verification of unemployment." An investigation that the Plaintiff was present at the Seoul Eastern District Office on February 1, 2018, constitutes an investigation to verify employment facts during the period subject to verification of unemployment under Article 47(2) of the Employment Insurance Act. It is difficult to provide the relevant administrative agency with the name and address of the relevant administrative agency or an opportunity to present its opinion in writing prior to the submission of an information and communications network report regarding the type of the disposition that the Defendant is allowed to retire, i.e., restrictions on the payment of job-seeking benefits under Article 61(1) or (2) of the Employment Insurance Act, and the relevant administrative agency’s name and address.

Meanwhile, comprehensively taking account of the overall purport of evidence Nos. 18 and 19 as well as the overall arguments, the Defendant sent a public notice to the Plaintiff on February 1, 2018, stating that “after the investigation of the Plaintiff into the Plaintiff was completed (the above public notice was enforced on February 13, 2018, but the date the actual public notice was sent was served on February 14, 2018; the date the notice was served on the Plaintiff was served on February 19, 2018; the date the notice was served on the Plaintiff was served on February 19, 2018), it is reasonable to view that the above public notice contains both the Plaintiff’s opinion and the prescribed method of disposition No. 1,909,940 won as to the restriction on the payment of job-seeking benefits and the return order of the Plaintiff pursuant to Articles 21(1) through 28(1) of the Employment Insurance Act, including the Plaintiff’s opinion that the aforementioned public notice was not submitted within the prescribed period of No. 21 to the Plaintiff’s submission of opinion (the above opinion). 21 to the Plaintiff’s.

C) Therefore, the Plaintiff’s assertion is difficult to accept.

2) Judgment on the Plaintiff’s assertion

As seen earlier, the investigation that the Plaintiff was present at the Seoul Eastern District Office on February 1, 2018 is an investigation to verify whether the Plaintiff was employed during the period subject to recognition of unemployment under Article 47(2) of the Employment Insurance Act, and constitutes an administrative investigation to collect information necessary for administration, i.e., an administrative investigation. This is clearly distinguishable from an investigation conducted by a public official designated as a judicial police officer under the Act on the Persons Performing the Duties of Judicial Police Officials and the Scope of their Duties in order to impose an administrative penalty as a sanction for a violation of the Administrative Act. Ultimately, an investigation conducted against the Plaintiff on February 1, 2018 cannot be deemed as being applied mutatis mutandis under the Criminal Procedure Act, and thus, the Plaintiff’s assertion is difficult to accept.

3) Judgment on the Plaintiff’s assertion

Article 1 of the Employment Insurance Act provides that "The purpose of this Act is to prevent unemployment, to promote employment, and to enhance the vocational ability of workers through the implementation of employment insurance, to enhance the State's vocational guidance and job placement functions, and to contribute to the economic and social development of the workers' livelihood stability and job seeking activities by providing necessary benefits when they are unemployed." In addition, Article 4 (1) of the Employment Insurance Act provides that "Insurance Act provides that "the purpose of this Act is to contribute to the economic and social development of the workers' livelihood stability and job seeking activities by providing necessary benefits when they are unemployed." In addition, Article 4 (1) of the Employment Insurance Act provides that "the insurance business is "the employment insurance business (hereinafter referred to as "insurance business") to achieve the purpose of Article 1, vocational ability development activities, unemployment benefits, child care leave benefits, and maternity leave benefits, etc." In other words, the Employment Insurance Act distinguishes the job-seeking benefits from the type of job-seeking benefits to be paid to the workers in order to stabilize their livelihood and promote their job-seeking activities."

In addition, comprehensively taking account of the overall purport of evidence Nos. 2 and 8 of the Employment Insurance Act, the Plaintiff submitted an application for recognition of eligibility for unemployment benefits and job-seeking benefits (attached Form 75) under Article 82 of the Enforcement Rule of the Employment Insurance Act to the Defendant on October 11, 2017 (the above form is used when applying for recognition of eligibility for job-seeking benefits pursuant to Article 42 of the Employment Insurance Act and Article 61 of the Enforcement Decree of the Employment Insurance Act). On December 5, 2017, the Plaintiff submitted an application for recognition of eligibility for job-seeking benefits (attached Form 82) to the Defendant on December 5, 2017 under Article 84 of the Enforcement Rule of the Employment Insurance Act [Attachment Form 82] (the above form is used when applying for the recognition of eligibility for unemployment benefits and job-seeking benefits pursuant to Article 44 of the Employment Insurance Act and Article 63 of the Enforcement Decree of the Employment Insurance Act). The Plaintiff has filed an application for recognition of eligibility for unemployment benefits with the Defendant, among them, and it is clear that the Plaintiff has made a minimum amount for living.

On the other hand, the plaintiff asserts that the job-seeking benefits were not received because he/she did not have a position to make a job-seeking benefits on the ground that he/she applied for the remedy of unfair dismissal to the Labor Relations Commission. However, it is clear that the plaintiff was dismissed on September 20, 2017 by "Co., Ltd." and "job-seeking benefits" and "job-seeking benefits" were in the status of "job-seeking benefits" and "job-seeking benefits" (Article 2 subparag. 2 of the Employment Insurance Act defines "job-seeking" as "the employment relationship between the insured and the business owner is terminated" and Article 2 subparag. 3 of the same Act defines "job-seeking benefits" as "the worker is in the status of non-employment despite his/her will and ability to make the "job-seeking benefits". On the other hand, the legal nature of the plaintiff's voluntary notification that the plaintiff would terminate the employment contract relations with the worker, which means that the plaintiff's refusal of the plaintiff's eligibility to receive job-seeking benefits is not an unfair job-seeking order.

Therefore, the Plaintiff’s assertion is difficult to accept.

4) Judgment on the Plaintiff’s assertion

Article 4(3) of the Electronic Government Act provides that "an administrative agency, etc. shall not require a civil petitioner to submit matters that can be electronically confirmed through the sharing of administrative information between them." However, in light of the purpose, history, legislative purport, system, etc. of the Electronic Government Act, where the Electronic Government Act provides for the sharing of administrative information as above, the purpose of the provision on the sharing of administrative information is to reduce the time and cost of the citizens in relation to civil petition application, to prevent the waste of administrative and financial power of the administrative agency due to the issuance and preservation of certificates, to prevent the violation of administrative and financial power of the administrative agency due to the issuance and preservation of certificates, to prevent the violation and alteration of distribution documents, and to improve convenience and efficiency through the improvement of the administrative

Therefore, the Plaintiff’s assertion is difficult to accept.

5) 원고의 ⑤ 주장에 관한 판단을 제21호증의 기재 및 변론 전체의 취지를 종합하면, 이 사건 처분서의 '지급제한, 반환 명령 및 추가징수 결정 내용 및 사유'란에 '03. [일용] 취업 사실 미신고 | 수급 이전 1개월간 10일 근로'라는 내용이 기재되어 있는 사실을 인정할 수 있다. 그러나 앞서 본 바와 같이 피고가 원고에게 보낸 2018. 2. 13.자 '처분사전통지서(의견제출통지)'라는 제목의 공문에는 처분하려는 원인이 되는 사실로 "실업급여 수급기간 중 'E'에서 2017. 11. 1.부터 2017. 11. 4.까지 근로를 제공하여 400,000원의 소득이 발생한 사실이 있음에도 이러한 사실을 해당 실업인정일(2017. 12. 5.)에 신고 누락하여 실업급여를 수급한 사실"이 기재되어 있고, 법적 근거로 실업인정 대상기간 중 취업을 하였을 때의 신고의무에 관하여 규정하고 있는 고용보험법 제47조가 기재되어 있었으며, 이 사건 처분서의 '지급제한, 반환명령 및 추가징수 결정 내용 및 사유'란에도 '취업사실 미신고'라는 내용이 명시되어 있으므로, 원고로서는 피고가 원고에 대하여 이 사건 구직급여 지급제한 처분 및 이 사건 반환명령 처분을 한 사유가 '취업사실 미신고'라는점을 충분히 알 수 있었던 것으로 보이는 점, 피고 소송수행자는 이 법원의 변론기일에 출석하여 이 사건 처분서에 위와 같이 처분사유가 표시된 이유는 '취업사실 미신고'와 '수급 이전 1개월간 10일 근로 '5)라는 각 사유가 전산상 하나의 항목(위 103'은 전산상의 항목 코드인 것으로 보인다)으로 분류되어 있기 때문이라는 취지로 진술한 바 있고, 위와 같은 피고 소송수행자의 설명에 일응 수긍이 가는 측면이 있는 점 등의 제반 사정에 비추어 보면, 위와 같은 이 사건 처분서의 처분사유 표시에도 불구하고, 피고가 원고에 대하여 이 사건 구직급여 지급제한 처분 및 이 사건 반환명령 처분을 한 처분사유는 '취업사실 미신고'일 뿐이라고 봄이 타당하다. 아니라 하더라도 행정처분에 있어 수개의 처분사유 중 일부가 적법하지 않지만 다른 처분사유로써 그 처분의 정당성이 인정되는 경우에는 그 처분을 위법하다고 할 수 없는 것인바(대법원 1997. 5. 9. 선고 96누1184 판결, 대법원 2004. 3. 25. 선고 2003두1264 판결, 대법원 2013. 10. 24. 선고 2013두963 판결 등 참조), '취업사실 미신고'라는 처분사유의 존재만으로도 이 사건 구직급여 지급제한 처분 및 이 사건 반환명령 처분의 적법성을 충분히 인정할 수 있다.

[1] The main sentence of Article 61(1) of the Employment Insurance Act provides that "the job-seeking benefits shall not be paid to a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means from the date on which he/she received, or attempted to receive, such benefits." Article 62(1) of the same Act provides that "the head of an employment security office may order the person who has received, by fraud or other improper means, to return all or part of the job-seeking benefits paid, and in addition, the amount equivalent to or less than the amount of job-seeking benefits paid by fraud or other improper means in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor may be collected." "False or other improper means" refers to any unlawful act committed by a person who is generally ineligible for benefits or who has concealed employment or income generated, and it is evident that the plaintiff's failure to report constitutes a case where he/she fails to fulfill his/her obligation to report such unemployment benefits, and thus, the plaintiff's assertion that "the defendant has not reported or otherwise unlawful means under Article 61(2) of the Employment Insurance Act."

3. Conclusion

Therefore, the part concerning the revocation of the disposition for additional collection among the lawsuits of this case is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Gin-ju

1) According to the Plaintiff’s employment insurance history (Evidence B No. 4), the Plaintiff acquired the status of employment insurance on January 23, 2018 with “F” as its workplace.

The date of acquisition of the qualification for employment insurance seems to have been employed in the workplace.

2) The Defendant’s internal computer system makes it possible to verify where unemployment benefits and the acquisition of national pension/health insurance overlap.

I seem to be.

3) Although the purport of restricting the payment of job-seeking benefits pursuant to Article 61 of the Employment Insurance Act is stated in the disposition (No. 21 certificate), the period during which the payment is limited.

(1) Article 61(1) of the Employment Insurance Act provides that “The unemployment benefits shall be received by fraud or other improper means.”

Those who have attempted to receive, or attempted to receive, job-seeking benefits from the date when they received, or attempted to receive, such benefits shall not be paid: Provided, That

The same shall not apply to new eligibility for job-seeking benefits after departure from employment, provided that "the same shall not apply to job-seeking benefits."

Notwithstanding the main sentence of paragraph (1), "any false or other unlawful means do not fulfill the obligation to report under Article 47 (1)" in paragraph (2).

In cases prescribed by Presidential Decree, such as false reports, job-seeking benefits shall not be paid for the period subject to recognition of unemployment: Provided, That this shall not apply

Article 47 of the Employment Insurance Act provides that "The main sentence of paragraph (1) shall apply where a violation has been committed on at least two occasions."

It is based on the non-performance of obligation to report at the time of employment during the period subject to recognition of unemployment referred to in paragraph (1).

A written disposition contains the purport that the payment of job-seeking benefits after the payment date of job-seeking benefits corresponding to the period subject to unemployment recognition.

In addition, only the purport of ordering the return of the full amount of the job-seeking benefits received during the period subject to unemployment recognition as the second time is stated.

In light of all the circumstances, it is reasonable to view that the period of restriction on the payment of job-seeking benefits is limited to the period subject to recognition of unemployment.

4) The order of remedy to the employer by the Labor Relations Commission is merely a public law obligation to obey it to the employer and is directly labor-management under the private law.

An employer’s failure to comply with an order of remedy does not cause finality to the employee.

Thus, a separate civil suit against the employer, such as a claim for nullification of dismissal, shall be filed with the court (Supreme Court Decision 75Ma496 Decided February 11, 1976).

See Decision, etc.)

5) This is one of the requirements for receiving job-seeking benefits under Article 40(1)5(a) of the Employment Insurance Act, before the date of applying for recognition of eligibility for benefits under Article 43.

It seems that the number of working days during the month is less than 10 days, which is related to the provision of "the number of working days".

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.