Plaintiff

The Administrator of the Gyeongman District Office;

December 1, 2008

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of early re-employment allowance against the Plaintiff on January 31, 2008 is revoked.

1. Details of the disposition;

A. On July 31, 2007, the Plaintiff retired from the Han T&M, and on August 29, 2007, filed an application for recognition of eligibility for employment insurance with the Defendant for employment insurance benefits, and received from the Defendant on September 6, 2007 the eligibility of KRW 240,000 for the fixed benefit payment days and KRW 40,00 for job-seeking benefits.

B. However, on September 6, 2007, the Defendant rendered a decision to suspend the payment of job-seeking benefits due to the receipt of large amount of money and valuables to the Plaintiff on the ground that the retirement benefits received by the Plaintiff at the time of retirement from the Han T&M company are not less than KRW 100 million (the entire amendment by Act No. 8429 of May 11, 2007) under Article 45-2 of the Employment Insurance Act (Article 59 of the current Act) (However, when the Defendant notified the Plaintiff of the above decision, the Defendant indicated not to “the postponement of the payment of job-seeking benefits” but to “the postponement of the payment

C. On November 15, 2007, the Plaintiff had been appointed as the representative director of the HabP Co., Ltd. (hereinafter “MabP”) under the grace period, and on this ground, on December 21, 2007, filed a claim against the Defendant for an early re-employment allowance.

D. For this reason, the Defendant, who wishes to receive early re-employment allowance, should report the Plaintiff’s preparatory activities for running a business within the pertinent benefit period as a result of re-employment pursuant to Article 44(2) of the Employment Insurance Act, and obtain recognition of unemployment. The Defendant, like the Plaintiff, issued a disposition of early re-employment allowance for the Plaintiff on January 31, 2008 on the ground that the payment of early re-employment allowance was impossible because it was physically impossible for a large amount of money and valuables recipient to start a self-employment business during the period of grace (hereinafter “instant disposition”).

[Ground for Recognition: Facts without dispute, Gap 2, 3, 11, Eul 3 through 8]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Habnb, the Plaintiff’s representative director, was a company that was made by investing 100% of the parent company. The Plaintiff was a person whose salary life was appointed to the representative director and was subject to year-end settlement, and cannot be considered as a self-employed person. Thus, the Defendant should pay the Plaintiff early re-employment allowance by applying Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act, not Article 84(1

(2) Despite the fact that the Defendant is subject to the postponement of payment by receiving a large amount of money and valuables, the Defendant notified the Plaintiff of the decision of the postponement of payment by indicating the “Unemployment Benefits” and caused the Plaintiff to lose the opportunity to respond to the method of receiving early re-employment allowances.

(3) The instant disposition was rendered on the ground that it is physically impossible for the Plaintiff to meet the payment requirements under Article 84(1)2 of the Enforcement Decree of the Employment Insurance Act, which goes against the legislative intent of the Employment Insurance Act, such as the stabilization of workers’ livelihood and the promotion of job-seeking activities, on the ground that it is inevitable

(b) Related statutes;

Employment Insurance Act

Article 1 (Purpose)

The purpose of this Act is, through the enforcement of employment insurance, to prevent unemployment, to promote employment, to develop and improve the vocational ability of workers, to strengthen the State's vocational guidance and job placement services, to support the livelihood of workers and job seeking by providing unemployment benefits, and to contribute to economic and social development.

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

1. The term "insured worker" means a worker who has been insured or is deemed to have been insured pursuant to Articles 5 (1) and (2), 6 (1), and 8 (1) and (2) of the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance (hereinafter referred to as the "Insurance Premium Collection Act");

5. The term "wages" means wages under the Labor Standards Act: Provided, That money and other valuables determined by the Minister of Labor among money and other valuables paid during a leave of absence or similar period shall be deemed wages under this Act;

Article 37 (Kinds of Unemployment Benefits)

(1) Unemployment benefits shall be classified into job-seeking benefits and employment promotion allowances.

(2) Types of employment promotion allowances shall be as follows:

1. Early reemployment allowances;

Article 44 (Recognition of Unemployment)

(1) Job-seeking benefits shall be payable for days of unemployment recognized by the head of an employment security office among the days of unemployment of an eligible recipient.

(2) An eligible recipient who intends to obtain verification of unemployment shall appear at an employment security center on the date designated by the head of the employment security center (hereinafter referred to as "date of verification of unemployment") within the limit of one week through four weeks from the date of reporting of unemployment under Article 42, and report that he/she has made efforts for reemployment, and the head of the employment security center shall recognize unemployment for each day from the date following the most recent unemployment recognition to the unemployment recognition date, until the unemployment recognition date: Provided, That the methods of verification of unemployment

Article 59 (Deferred Payment of Job-seeking Benefits following Receipt of Large Amount of Money or Goods)

(1) Notwithstanding Article 48 (1), the payment of job-seeking benefits may be postponed for three months from the date of reporting unemployment under Article 42, with respect to an eligible beneficiary who has received money or goods in excess of the amount prescribed by Presidential Decree as retirement allowances, etc. (including a person whose receipt is clearly determined by Presidential Decree), considering economic conditions at the time of severance from employment, etc

(2) An eligible beneficiary for whom the grace period for job-seeking benefits under paragraph (1) has expired shall be deemed to have passed the waiting period under Article 49.

(3) With respect to an eligible beneficiary whose job-seeking benefits have been deferred under paragraph (1), the benefit period shall be calculated by adding three months to the benefit period of the eligible beneficiary defined in Article 48.

Article 64 (Early Re-employment Allowances)

(1) Early re-employment allowances shall be paid to an eligible recipient (excluding foreign workers defined in Article 2 of the Act on the Employment, etc. of Foreign Workers) in a stable job or self-employed business that satisfies the standards prescribed by Presidential Decree.

(2) Notwithstanding paragraph (1), early re-employment allowances shall not be payable to an eligible recipient who had received early re-employment allowances in a period prescribed by Presidential Decree before the date of reemployment in a stable occupation or commencing one's own for-profit business.

Enforcement Decree of the Employment Insurance Act

Article 78 (Scope, etc. of Money or Valuables in Large Amount)

(1) "Money and valuables exceeding the amount prescribed by Presidential Decree" in Article 59 (1) of the Act means money and valuables (excluding wages) of at least 100 million won in total received at the time of severance, whatever names, such as retirement allowances, retirement consolation benefits, etc.

Article 84 (Standards for Payment of Early Re-employment Allowances)

(1) "Standards prescribed by Presidential Decree" in Article 64 (1) of the Act means cases where an eligible beneficiary falls under any of the following subparagraphs:

1. Where he/she is employed in a job for which continuous employment is deemed certain for not less than six months: Provided, That this shall not apply where an eligible recipient is employed by the business owner who has most recent severance from employment or any other business owner related thereto and prescribed by Ordinance of the Ministry of Labor, who re-employed or has promised to employ prior to the reporting date of unemployment

2. Where it is recognized that he/she has been engaged in a for-profit business for at least six consecutive months. In such cases, it shall be limited to cases where an eligible recipient has reported his/her preparatory activities for running the relevant business as a re-employment activity during the relevant benefit period and recognized as a unemployment, pursuant to Article 44 (2)

Enforcement Regulations of Employment Insurance Act

Article 92 (Criteria for Recognition of Employment)

Pursuant to Article 69 (2) of the Decree, an eligible recipient shall be deemed employed in any of the following cases:

1. Above 5. omitted

6. Where he/she has registered his/her business pursuant to tax-related Acts (excluding cases where he/she proves that he/she has not reported his/her business suspension, etc. even though he/she has registered his/her business, or cases where he/she has

7. Other cases where he/she is recognized as having been employed by social norms.

The Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance.

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "insurance" means the employment insurance under the Employment Insurance Act, or the industrial accident compensation insurance under the Industrial Accident Compensation Insurance Act;

2. The term "worker" means a worker as provided for in the Labor Standards Act;

3. The term "wages" means the wages under the Labor Standards Act: Provided, That where the employment insurance premium under Article 13 (1) 1 is collected, the money and other valuables determined and publicly notified by the Minister of Labor from among the money and other valuables paid during the period of temporary retirement or similar status, shall be deemed the wages under this Act;

Labor Standards Act

Article 2 (Definitions)

(1) The terms used in this Act shall be defined as follows:

1. The term "worker" means a person who provides his/her labor for wages or at a business or workplace, regardless of the type of occupation;

2. The term "employer" means a business owner, a person responsible for the management of a business, or a person who acts for a business owner with respect to matters concerning workers;

C. Whether the instant disposition is lawful

(1) Determination as to the assertion that Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act shall apply to a person who receives a salary.

On the other hand, Article 2 of the Employment Insurance Act defines “insured” as “worker who is insured or deemed to have been insured pursuant to Articles 5(1) and (2), 6(1), and 8(1) and (2) of the Act on the Collection of Insurance Premiums for Employment and Industrial Accident Compensation Insurance (hereinafter “Insurance Premium Collection Act”). Article 2 of the Insurance Premium Collection Act defines “worker” as “worker under the Labor Standards Act.” Article 2 of the Labor Standards Act defines “worker” as “worker under the Labor Standards Act.” The Labor Standards Act defines “employer” as “employer, business manager, and other person who acts on behalf of the business owner, even if the Plaintiff takes office as the president who receives salary, as the representative director, even if the Plaintiff was in charge of business management and affairs related to workers, as long as the Plaintiff performs the insured status, and thus, the Plaintiff’s assertion regarding the above criteria for early re-employment allowance cannot be seen as constituting “worker’s employment insurance” under Article 8(1)4 of the Enforcement Decree of the Employment Insurance Act.

(2) Judgment on the assertion that the defendant erroneously notified the subject of the postponement of payment

In notifying the Plaintiff on September 6, 2007 of the decision to suspend the payment of high-amount benefits, the fact that the Defendant notified the Plaintiff of the decision to suspend the payment of unemployment benefits is as seen earlier, and Article 59 of the Employment Insurance Act provides that the subject of the postponement of the payment of high-amount benefits shall be job-seeking benefits. However, Article 37 of the same Act classifys the unemployment benefits as job-seeking benefits and employment promotion allowances, and stipulates early re-employment benefits as one of the employment promotion allowances, even if the Defendant indicated the Plaintiff as the "non-regular postponement of the payment of job-seeking benefits" in notifying the Plaintiff of the decision to suspend the payment of job-seeking benefits, the Defendant's decision to suspend the payment of unemployment benefits is included in the unemployment benefits, and this cannot be viewed as unlawful. Accordingly, the Plaintiff's assertion on this part is without merit.

(3) Determination as to the allegation that the instant disposition was unlawful on the grounds of force majeure

According to Article 84(1)2 of the Enforcement Decree of the Employment Insurance Act, if the Plaintiff intends to receive early re-employment allowance on the ground that he/she was appointed as the representative director of the YP, he/she shall report his/her preparatory activities to run the pertinent business as re-employment activities within the benefit period and obtain recognition of unemployment. The Plaintiff shall be granted postponement of payment of job-seeking benefits on September 6, 2007 (3 months) and the Plaintiff was physically unable to report re-employment activities before the Plaintiff was appointed as the representative director on November 15, 2007.

However, the system of postponement of job-seeking benefits following the receipt of high-amount money and valuables is to promote substantial allocation of job-seeking benefits under the Employment Insurance Act by providing job-seeking benefits only when the need for stabilizing the livelihood of workers and promoting job-seeking activities, which are the legislative purpose of the Employment Insurance Act, are relatively weak compared to the ordinary retirement workers, and the job-seeking benefits remain in unemployment workers after the expiration of the period of unemployment report after retirement. Considering the legislative intent of the Employment Insurance Act, especially the Employment Insurance Act, in light of the purpose of the delayed payment of job-seeking benefits following the receipt of high-amount money and valuables, even though the Plaintiff failed to meet the payment criteria for early re-employment benefits, and thus, it cannot be deemed unlawful for the Plaintiff to refuse the payment of early re-employment allowances. Accordingly, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong Young-hun (Presiding Justice)