(영문) 서울고등법원 2018.2.7. 선고 2015누70326 판결

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the order of cancellation below shall be revoked. 2. The defendant's order for return of employment maintenance support payment and additional collection disposition against the plaintiff on October 17, 2009 against the plaintiff shall be revoked.

3. All remaining appeals by the plaintiff and the defendant are dismissed.

4. 3/4 of the total costs of the lawsuit shall be borne by the defendant, and the remainder by the plaintiff.

Purport of claim and appeal

1. Purport of claim

Order No. 2 and the Defendant’s order for return of employment maintenance support payment and disposition for additional collection against the Plaintiff on October 17, 2012, and disposition for refusal of payment of employment maintenance support payment in 2012 is revoked.

2. Purport of appeal

A. Plaintiff: The part of the judgment of the first instance against the Plaintiff shall be revoked. The disposition rejecting the payment of employment maintenance support payment made against the Plaintiff on October 17, 2012 by the Defendant and Paragraph 2 of this Article shall be revoked.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

Reasons

1. Details of the disposition;

The reasoning for this part of this Court is as follows, and this part of this Court's reasoning is identical to the corresponding part of the reasoning of the judgment of the court of first instance, except for the addition of some contents as follows. Thus, it shall be accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article

(g) On December 31, 2013, Incheon District Court Decision 201Da27, which did not change the type of business from the manufacturing business to the telecommunications sales business, and did not install or maintain new facilities or equipment for conversion of the type of business in the state of which the existing business was engaged in mail order business, not by converting the type of business from the telecommunications sales business to the telecommunications sales business, and instead by deceiving the victims' employment assistance center from 2009 to 10 years before the date of actual sales or manipulating the sale price through the delivery of the month in which the adjustment in employment was inevitable. In relation to 2010, the Ministry of Employment and Labor failed to establish or maintain the Incheon Employment and Labor's new employment assistance center by deceiving the victims' employment assistance center from 10 years to 20 years after the disposition of this case.

H. On August 20, 2015, the above court found the defendant guilty as to the facts charged related to B/209: (1) "B was not guilty of the facts charged regarding B/209, by deceiving the Incheon Employment Center which was the victim by omitting a considerable part of the sales card and cash sales amount deposited in the name of B/B; (2) it cannot be deemed that there was no conversion of the type of business, and even if the actual sales amount based on the facts charged, it can be deemed that there was a decrease in the standard monthly sales amount, and thus, the court rejected the defendant's appeal regarding B/4 as to the facts charged regarding B/4 of employment maintenance support payment for 200, and found the defendant guilty of the above facts charged as to B/4 of employment maintenance support payment for the reasons that B/4 had not been found guilty of the above facts charged regarding B/4 employment maintenance support payment for the reasons that B/4 had not been removed by the prosecutor's prior to 20 years since July 2011.

The reasoning for this part is that the court's reasoning is that "the measure of restricting the payment of employment maintenance support payment during the disposition of this case is appropriate to interpret that "the measure of restricting the payment of employment maintenance support payment during the disposition of this case has the meaning of rejection of the plaintiff's application of employment maintenance support payment in 2012" as "the measure of restricting the payment of employment maintenance support payment during the disposition of this case is reasonable to interpret that it has the meaning of rejection of the disposition on the ground that there are no circumstances that the plaintiff's employment maintenance in 2012 and the application of subsidies are inevitable to adjust the employment support payment during the disposition of this case," except that it is equivalent to the corresponding part of the reasoning for the judgment of the first instance, and therefore, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act."

3. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) Even if the Plaintiff fell under the eligibility for employment maintenance support payment at the time of the application for employment maintenance support payment in 2009 and 2010, the instant disposition taken on the ground that the Defendant did not make business conversion to the Plaintiff on the ground that there was no circumstance to deem that the employment adjustment was inevitable for the Plaintiff, should be

2) According to the report on the plan for employment maintenance measures, the Plaintiff: (a) additionally leased the head of a district office of education for dispatched human resources to the building Bupyeong-gu Incheon Bupyeong-gu E; (b) installed equipment and equipment seal of facilities necessary for education; (c) the Plaintiff was dispatched from the office of education around 2009, prior to the application for employment maintenance support in 2012; (d) it is not deemed that the Plaintiff was merely temporary and once more than once; (c) it is difficult to view that the Plaintiff was concurrently engaged in personnel dispatch business and video/cinematographic work; (d) after the completion of the replacement of human resources in 2012, K.KL was working at the Yeongdeungpo-gu Center; (e) MN.0 was engaged in the management of the dispatched workplace while working at the Bupyeong-gu Bupyeong-gu E; and (e) there was an employee change; (e) there was insufficient credibility in the statement of related criminal cases and double name of the investigator X, and (e) the Plaintiff submitted a building photograph to the relevant 20-year employee after the completion of the new building.

It is illegal to refuse the payment of employment maintenance support payment in 2012 on the ground that it is not illegal.

B. Relevant statutes: Determination is as stated in the relevant statutes.

1) Determination as to whether the payment of employment maintenance support payment in 2009 constitutes an illegal receipt

A) Relevant legal principles

Employment maintenance support payment, as well as management crisis such as shortage of raw materials, reduction of production volume, reduction of sales volume, inventory cumulative, etc., where a business owner who has become inevitable to adjust employment due to occurrence of surplus labor in a company due to such factors as business reduction, management harmony, change of production method, and change of organization, etc. does not reduce the number of employees employed in a company, and takes measures to maintain employment in order to continuously maintain employment of workers, such as suspension of business, training, temporary retirement, and relocation of human resources, it is paid to support the relevant business owner, and ultimately plays a role to prevent the actual employment of workers by relaxing the business burden (see Supreme Court Decision 2005Du7723, Sept. 29, 2005).

Except in cases where there are special circumstances in administrative litigation, the administrative agency should assert and prove the legality of the administrative disposition (see Supreme Court Decision 9Du8107 delivered on January 16, 2001).

B) the facts of recognition

(1) On January 21, 2009, the Plaintiff submitted a plan report to the Incheon Employment Center of the Ministry of Employment and Labor stating that the business should be converted from the existing manufacturing business, service business, and wholesale and retail business to the engineering service business and telecommunications sales business, and the reason for employment maintenance is to rearrange human resources. The Plaintiff recently submitted a plan for employment maintenance measures (human resources re-disposition) to the "reduction of sales and human resources productivity due to the reduction of sales volume due to the reduction of

(2) At the time of the report of the above plan, the Plaintiff submitted the comparison table of the sales and the purchase sales statement as evidentiary documents, and reported the sales as shown below.

A person shall be appointed.

(3) Upon reporting the completion of the replacement of human resources, the Plaintiff organized the existing place of business in order to convert the telecommunications sales business, submitted photographs that installed stedums, such as flooring replacement and photographing equipment, to the Incheon Employment Center, and confirmed whether the public official in charge was equipped with the installation or maintenance of facilities or equipment for conversion of the type of business in the Plaintiff’s place of business.

(4) As a result of confirmation, the Plaintiff’s report on the completion of measures for retaining employees was rejected as of April 22, 2009 due to lack of lighting and sculing facilities that were to be installed at the time of the report. After that, the Plaintiff’s report on completion of measures for retaining employees was corrected to supplement the Plaintiff’s shortage of the reasons for rejection. The Incheon Employment Center of Ministry of Employment and Labor reduced the Plaintiff’s sales amount of KRW 1,805,455 on December 2, 2008, the base month, by 64% compared to the Plaintiff’s sales amount of KRW 5,00,000,000 on November 208, 208, and the Plaintiff paid employment maintenance support payment to the Plaintiff in 209, as recognized in the process of the above disposition 1. However, the Plaintiff continued manufacturing business and service business other than online sales business by assembling and manufacturing equipment after completion of measures for retaining employees, and the Plaintiff’s report on the completion of corporate register of the Plaintiff’s business.

(5) The number of the insured (employed) at the time the Plaintiff submitted the report on the plan for employment maintenance measures in 2009 was five, but the number of the insured at the time of submitting the report on the completion of employment maintenance measures was increased by 11.

(6) The Defendant determined that considering the fact that the Plaintiff received employment maintenance support payment by the deadline for the principal payment of the land where employment was maintained in 2009 and 2010 (one year) and submitted a report of employment maintenance plan and a completion report in 2012 for the purpose of applying for employment maintenance support payment, it is necessary to investigate whether the Plaintiff met the requirements of relevant laws and regulations at the time of applying for subsidies, and whether the subsidies already paid are adequate. The Defendant’s employee X continued to increase the number of employees before and after the relocation of human resources, and the total number of employees increased the rent, and the increase in the Plaintiff’s capital due to conversion into a corporation, it is difficult to view that the Plaintiff’s existing business is at a risk of employment closure due to business due to business management and economy circumstances, and it is difficult to determine that the Plaintiff continued to engage in new employment maintenance business due to new type of mail order sales business without reporting new employment maintenance measures after 209 and then, it is difficult to determine that the Plaintiff continued to engage in new employment maintenance business as a type of mail order.

(7) On October 17, 2012, the Defendant determined that the Plaintiff received the employment maintenance support payment in 2009 by fraud or other improper means on the ground that, notwithstanding the grounds for employment maintenance measures (the decline in sales caused by a competition) alleged by the Plaintiff at the time of receiving the employment maintenance support payment in 2009, the number of employees or wages increased rather without justifiable grounds, such as reduction of the number of employees, wage dynamics, four premium and tax arrears, etc., and that the Plaintiff had already been engaged in mail order business through the Internet, etc. before the employment maintenance measures were taken.

(8) In the relevant criminal case, the Plaintiff’s sales based on the results of the analysis of sales recorded in the investigation report prepared by the prosecution investigator compared the details of the national bank, corporate bank, and the NongHyup account transaction in the name of B and the Plaintiff, are as follows

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 2-1, Gap evidence 3, Gap evidence 4-3, 18, 25, 49, Gap evidence 5-5, Gap evidence 8-2, Gap evidence 9, Eul evidence 1, and the purport of the whole pleadings

C) Determination

Examining the following circumstances, in light of the aforementioned facts and evidence Nos. 4-18, 20, 25, 36, 42, and 8-1, 5, and 9-1, 8-5, and 4-23 of the evidence No. 4, and the overall purport of the evidence No. 4-23 of the evidence No. 4, it is difficult to deem that the Plaintiff received the employment maintenance support payment for 2009 by fraud or other improper means. Accordingly, it is unlawful to order the Plaintiff to return the employment maintenance support payment for 2009 and additionally collect the amount twice the amount. Accordingly, this part of the Plaintiff’s assertion is with merit.

(1) Whether sales have decreased

(A) It does not necessarily mean that the determination of whether an adjustment in employment was inevitable is made only on the ground of a decrease in sales.

(B) Under the corporate accounting standards, the principle of awareness of sales is deemed to be the so-called principle at the time of actual occurrence of the transaction regardless of the time of cash receipt or disbursement. It is reasonable to examine the increase or decrease of monthly sales based on the principle of accrual, unless there are special circumstances to deem it unreasonable to apply the so-called principle of cash (based on the time of cash transaction) as an exception to such principle as an exception. Nor can all be deemed to be the Plaintiff’s sales of the money deposited into the account in the name of the Plaintiff and the account in the name of B, and the sales may be reported as at the time of issuance or receipt of the tax invoice as follows.

① Recognizing the accrual principle, C issued sales tax invoices by supplying them to Maung Co., Ltd. on October 27, 2008, and thus, C, regardless of November 13, 2008, the date of sales, regardless of the deposit date, is deemed to be October 27, 2008, and thus, it is difficult to deem that it was illegal to report it as sales in October.

② On November 2, 2008, C concluded a five purchase contract with Zfinch (A) with Z on October 15, 2008, and agreed to deliver it on November 2, 2008. According to the confirmation of facts written by the representative AB, C supplied spinch to an enterprise on November 2, 2008 and received the sales tax invoice. Therefore, regardless of whether payment was delayed and deposited on December 3, 2008 due to the delay in payment, it cannot be said that there was an error of reporting it as the sales amount in November 2, 2008.

③ According to the Plaintiff’s sales contract’s entry into a sales contract with C and AC on December 17, 2008, it can be recognized that: (a) the Plaintiff’s investigation agency entered into a sales contract with C and AC on December 17, 2008; (b) the supply of value-added tax on December 20, 208; and (c) the payment on January 2, 2009. According to the entry into the C’s inventory Book, it can be recognized that C were supplied with the said product on December 208 and AC was scheduled to additionally purchase five (5) additional payments. In light of such circumstances, it is difficult to avoid the possibility that they were to issue tax invoices once, and it is difficult to conclude a sales contract with the Defendant’s assertion that “AE’s statement (it is difficult to acknowledge that the price for internal investigation is less than 30 years, as stated in the AE’s statement in the B’s criminal case with the Defendant’s assertion that it was difficult to acknowledge that the price for sale was less than 30 years, as stated in the first instance.

④ On December 22, 2008, the Plaintiff’s investigative agency conducted an investigation on December 22, 2008, the payment details of the deposit amount on December 22, 2008, to AF, to provide education services, and to receive KRW 5 million from AF on December 22, 2008 as registration fees. C provided education for instructors, teaching assistant, additional purchase, website registration, and other services. After the completion of the provision of the services, it decided to settle the accounts through settlement, such as additional service fees, but the education service was not conducted in the middle. Since AG and AH, an instructor, and the service contract was terminated even during the service contract, the service contract was not completed. Accordingly, the above amount was reported as sales revenue after the completion of the provision of the services, and thus, the Plaintiff did not report it as sales revenue on December 22, 2008, and there was no evidence to acknowledge the amount otherwise from AF on December 20, 2008.

⑤ According to the statement on the payment of automobile insurance money, B can be recognized as having been hospitalized from December 29, 2008 to December 30, 2008 after contact with the back of the Plaintiff’s vehicle at the New High School located in Gangnam-gu Seoul, Gangnam-gu, Seoul and received medical treatment. Therefore, 90,000 won deposited from the Mzzz fire Marine Insurance Co., Ltd. on December 30, 2008 to the B account is considered to have received insurance money as the damages from the above insurance company. Thus, it does not constitute the Plaintiff’s sales amount in December 2008.

(6) On December 23, 2008, KRW 785,000 deposited from AI to B account, according to the entry in the C Purchase Form, C has paid KRW 1,80,000 (excluding value-added tax) to AI around October 1, 2008 after ordering the printing of the Kathag and paying the printing price of KRW 1,80,000 (excluding value-added tax). The cancellation of this and the cancellation of part of the price is refunded from AI, and thus, it does not constitute Plaintiff’s sales amount on December 2, 2008.

7. Each of the entries in the AJ Company AK’s AK’s KRW 90,00,00 on December 8, 2008, AL’s KRW 914,280 on December 8, 2008, and R’s KRW 330,00 on December 21, 2008, and KRW 230,000 on December 30, 2008, B’s KRW 80,000 on December 30, 200, each of the deposits in the Plaintiff’s and B’s accounts and evidence Nos. 8-5 (Investigation Report), 6 (Investigation Report), and 7 (Examination of Suspect’s Suspect’s Examination) are insufficient to deem that each of the above deposits occurred on December 2, 2008, and there is no other evidence to acknowledge otherwise.

(D) If so, it is difficult to deem that there was an intentional omission in the sales amount reported by the Plaintiff on December 2, 2008. According to the sales amount reported by the Plaintiff, according to the sales amount reported by the Plaintiff, the sales amount of the base month has decreased by at least 10% compared to the sales amount

(2) Whether the type of business is converted

(A) According to the statement in a contract for occupancy of a business incubator of a NN university, C newly leased the object business incubator from February 4, 2009 to December 23, 2009, 175m2 including other facilities out of No. 307, to convert the telecommunications sale business.

(B) According to each description and image of C additional facilities, each description of C additional Y business trips and Y business trips, the above object was subject to removal of office garbage and waste, disposal / transfer pipes, construction of floor materials, and installation of stedigraphic photographing equipment.

(C) According to the legal statement of witness at the first instance court in the relevant criminal case, B organized the existing place of business in order to convert the telecommunications sales business when a report is filed for replacement of human resources, submitted a photograph installed with stedyd, such as flooring replacement and photographing equipment, to the Incheon Employment Center, and confirmed whether the public official Y et al., who is a public official in charge, had installed or maintained facilities or equipment for conversion of the type of business in the Plaintiff’s place of business.

(D) According to the witness W’s statement in the relevant criminal case first instance trial, while the articles sold as a main type of business are not well sold and discussed, it is recognized that the witness W, who is a business employee, was unable to operate his/her business due to drinking driving, and thereby, was converted to the communications sales business that conducts public relations by using the Internet. Thus, even though the circumstances such as drinking driving of a business employee, the need for conversion of the business is deemed to have existed prior to this, and the above circumstances, which have been converted into the communications sales business, are acceptable.

(E) On February 27, 2012, AO’s legal statement in the first instance trial related to AO as shown in the Defendant’s assertion is insufficient in light of the following: (a) AO began to be in charge of duties at the Incheon Northern Employment Center of the Ministry of Employment and Labor on February 27, 2012; (b) the Ministry of Employment and Labor replys that it would be well aware of whether it falls under the grounds for disqualification for the conversion of duties if it is held concurrently with the previous business; (c) AO is not a person who received a direct plan report or a completion report or conducted a verification report; and (d) if the main business type was changed,

(F) Considering the fact that X’s investigation report on September 6, 2012, which seems consistent with the Defendant’s assertion, was conducted mainly by X according to the witness X’s statement at the first instance court witness X of the relevant criminal case, for the year 2012, and the public official in charge at the time of 2009 was Y, and it was not sufficiently confirmed, it is insufficient to view that the above evidence alone reported a false conversion even if it did not change the type of business.

(G) The Plaintiff did not have been engaged in the mail order business prior to filing a report on the conversion of the type of business into the mail order sales business on March 2009 (it cannot be deemed as part of the advertisement for the manufacturing business, which was opened by the Plaintiff’s staff RR from 2008 to 2008, as part of the advertisement for the manufacturing business.

(h) The manufacturing industry falls under the category of 'sports and sport equipment manufacturing business (small classification 33) under the Korean Standard Industrial Classification Table, and the communication sales business falls under the category of 'nonstore retail business (small classification 479)', and thus, the Plaintiff constitutes a case where the business is converted from the category of small classification under the Korean Standard Industrial Classification Table to a new type of business belonging to the category of different small classification

(i) According to the investigation report (the confirmation of the ratio of sales by mail order and the evidence No. 8-5), it can be acknowledged that the sales by mail order during the period of employment maintenance measures in 2009 is only 15.83% of the total sales. However, since the sales by mail order are limited to the sales within one year after the conversion of the type of business, it is insufficient to view the telecommunications sales by itself as not the main business but the incidental business.

(j) As asserted by the Defendant, it is difficult to view a new business added solely on the ground that the increased number of insured workers after the conversion of business is engaged in the existing manufacturing business.

(k) The time at which the AP’s legal statement of the witness of the first instance trial related to the relevant criminal case was converted into a telecommunications sales business is not specified.

(l) No evidence exists to deem that the Plaintiff did not conduct the mail order business.

(m) According to the purport of the prosecutorial investigation protocol (No. 8-5) and the entire arguments about the relevant criminal case B, the details of changes in the organization and business form of workers after the conversion of business type are as follows. However, it is difficult to readily conclude that such changes in business form merely correspond to the defendant’s assertion, with the descriptions of No. 6-1 and No. 8-6, are merely a formal reorganization of human resources.

A person shall be appointed.

(n) If the number of the insured at the time of submitting the report on the plan for employment maintenance measures in 2009 was five, the increase of the number of the insured at the time of submitting the report on the completion of the employment maintenance measures by four persons is a new re-transfer of 80% of the insured at the time of filing the report on the plan for employment maintenance measures, satisfying the requirements of Article 19(1)4 of the Enforcement Decree of the Employment

2) The court’s determination on whether the payment of employment maintenance support payment was illegal in 2010 is identical to the corresponding part of the reasoning of the judgment of the first instance except for the portion added or dismissed as follows. As such, this part of the reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act.

(5) According to the results of the analysis of sales recorded in the investigation report prepared by the prosecutor in comparison with the details of the national bank, the corporate bank, and the Nonghyup bank account transaction in the name of the plaintiff in the relevant criminal case, the plaintiff's sales identified by the prosecutor investigation officer in the following table: "If the number of the insured at the time of submitting the report on the completion of the employment maintenance measure in 2010 is 12, the number of the insured at the time of submitting the report on the completion of the employment maintenance measure is increased by 10,000, the number of the insured at the time of submitting the report on the completion of the employment maintenance measure is increased by 83% at the time of submitting the report on the employment maintenance measure in 2010, which satisfies the requirements of Article 19 (1) 4 of the Enforcement Decree of the Employment Insurance Act."

3) Determination as to the legitimacy of a disposition rejecting payment of employment maintenance support payment in 2012

According to the purport of Gap evidence Nos. 4, 5, 6, and 9, the plaintiff prepared a transfer contract to transfer the sports center to G on May 1, 2012. G is the kind of H registered as the plaintiff's employee on May 1, 2012 and prepared a transfer contract with the purport that it should re-contract with the plaintiff on all matters concerning human resources, management, and operation. ② The plaintiff prepared a transfer contract to transfer the sports center in Yeongdeungpo-si to I on March 7, 2012. The plaintiff was neither the plaintiff's leader nor the plaintiff's representative, who was a business entity after March 1, 207, and prepared a transfer contract to transfer the same business entity to G on the same date as the plaintiff's employee's employee's transfer, management, and operation. ③ The plaintiff still dispatched his/her employees on the Gyeonggi-do's website, which was merely his/her employee's temporary dispatch from 0 PC 200 to 10,000.

In other words, the following circumstances revealed from the above facts, i.e., ① the Plaintiff entered into a contract for the business takeover in the form of the representative or employee type, etc., ② there is no special circumstance to suspect the credibility of X-verification, and thus, there is no difference in actual business contents even after employment maintenance measures (personnel re-disposition). ③ Therefore, even if the Plaintiff additionally leased the building E and installed equipment, facilities, interior, etc., as claimed by the Plaintiff, it is merely an investment such as purchase of high-class equipment to expand the existing type of business, etc., the Plaintiff cannot be deemed to have converted the business into a new type of business or re-disposition of human resources.

Therefore, it is legitimate that the defendant refused to pay the plaintiff the employment maintenance support payment in 2012 without examining further.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal is accepted, and the part of the judgment of the court of first instance against the plaintiff as to the return order of employment maintenance support payment and the disposition of additional collection for 2009 among the judgment of the court of first instance is revoked, and the order of return of employment maintenance support payment and the disposition of additional collection for 2009 are revoked, and the remaining appeal of