(영문) 서울고등법원 2015.4.9. 선고 2014누67064 판결

The judgment of the first instance is revoked. The Defendant’s disposition of restricting the payment of unemployment benefits, ordering return of unemployment benefits, and imposing additional collection against the Plaintiff on January 9, 2014 shall be revoked.

Reasons

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus cite it as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 460 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On January 15, 2013, the Plaintiff: (a) visited the instant company from time to time to time until August 1, 2013 in order to receive delayed benefits from the date of resignation from the instant company’s recommendation to the date of employment on August 1, 2013; (b) there was no regular work or payment for such wages; and (c) the Plaintiff was unable to maintain livelihood on the sole basis of the fact that the Plaintiff was receiving job-seeking benefits; and (d) was visited for the purpose of receiving delayed wages during preparation for employment and job-seeking; and (e) the Defendant’s investigator did not waive job-seeking or employment. In addition, at the time of investigating the employees of the instant company against the instant employees, the Defendant’s investigator was merely limited to who was on duty, and did not ask for the Plaintiff’s form of work, remuneration, etc.; and (e) did not have any credibility to make a statement by forcibly unreasonable investigation to late.

B. Relevant statutes

It is as shown in the attached Table related statutes.

1) In the course of the investigation conducted by the Defendant for the instant disposition, the Plaintiff and the employees of the instant company stated to the Defendant as follows.

① 이 사건 회사에서 근무했던 C(2013. 3. 25.부터 2013. 6.경까지 근무), D(2012. 9. 14.부터 2013. 6. 30.까지 근무), E(2012. 5. 21.부터 2013. 6. 30.까지 근무), F(2012. 8.경부터 2013. 6.경까지 근무)은 원고를 부장으로 호칭하였고, 이들이 근무하는 기간 동안 원고도 계속 같이 근무하면서 재단 업무와 외주 업무를 하였으며, 나중에 원고가 실업급여를 받고 있었다는 사실에 모두 깜짝 놀라서 이야기한 적이 있고 원고가 급여를 못 받아서 투쟁하는 것은 한 번도 본 적이 없다고 진술하였다.

② The Plaintiff stated that “C, G, and H had continued to stay in the company of this case with a large monthly rate of wages.” As the Plaintiff, C, G, and H had been staying in the company of this case and continued to work in the company of this case. After that, C, G, and H stated that “I had been staying in the J company of Busan City and had been staying in the company of this case and continued to work in the company of this case.”

③ In the process of the instant investigation, K, the real representative of the instant company, reported the closure of business on August 1, 2013. The Plaintiff made a report on the closure of business on and after the end of the investigation into the instant case. The Plaintiff’s employee was working for the J company on the level of KRW 10,000,000 to receive the smuggling’s wage, and continued to do so. L Company operated by the president, on July 1, 2013, was practically taking over the instant company under the condition that K would assist in its business. From the J company located in Bupyeong-si I, Busan, the Plaintiff was working for the Plaintiff. The Plaintiff was also working for the Defendant’s employee on September 4, 2013 to investigate the illegal receipt of the unemployment benefits.

2) The Plaintiff received respectively KRW 400,000,000 from J companies, and KRW 1,90,000 on March 26, 2013, and KRW 2,576,00 on May 10, 2013, and KRW 949,00 on July 10, 2013.

3) The Plaintiff written an application for unemployment recognition submitted to the Defendant on six occasions, stating that the Plaintiff is “no” in the facts of work and the details of employment (pre-employment) during the period subject to unemployment recognition.

4) The Plaintiff filed an application for unemployment recognition six times, stating the details of re-employment activities during the period subject to unemployment recognition as follows.

① On April 1, 2013, the written application for recognition of unemployment, which was submitted on April 1, 2013, stated “N on March 20, 2013, the head of the M& company located in Bupyeong-gu Incheon Metropolitan City,” as “N.”

② The written application for unemployment recognition submitted on April 29, 2013 and indicated “P interview with the president” as “P interview with a company located in Seocheon-si, Gyeonggi-do.”

On May 27, 2013, the written application for unemployment recognition, which was submitted on May 27, 2013, stated “R of the Design Director of Qa company located in Seocho-gu Seoul on May 13, 2013.”

On June 24, 2013, the written application for recognition of unemployment submitted on June 24, 2013, stating "T with the deputy head of the Dongdaemun-gu Seoul Metropolitan Government Dispute Resolution Co., Ltd."

⑤ On July 23, 2013, the written application for unemployment recognition, stating the president V of the U company located in Geumcheon-gu Seoul Metropolitan Government as the “Interview” on June 27, 2013.

5) However, the Plaintiff’s actual situation and the other party’s statement as to whether to hold an interview with the Plaintiff on the application for unemployment recognition are as follows.

① The M company closed its business on July 9, 2009, and N was working in W at the time. ② P stated that “The N Department stated to the Defendant that “The Plaintiff was an employee of the business as a customer but did not have an interview.”

③ The Defendant stated to the effect that Q&C was not a company that actually operated, and that there was no fact that Q&C had been made a job offer advertisement, and R also made a statement to the Defendant that “The name of Q&C company was a company that is Q&C company, but there was no actual operation, and there was no job offer advertisement, but there was no job offer advertisement.”

④ On May 2, 2012, S was closed, and T was in office in Y at the time when T was in office. ⑤ U company closed its business on January 31, 2012.

6) On July 1, 2013, the instant company run by K closed its business, and L, which operates the J company, acquired and operated the instant company, and the Plaintiff was employed in the J company from August 1, 2013 to work regularly.

7) The Defendant’s Z investigator did not work overtime at night on September 12, 2013 and September 13, 2013 when investigating the Plaintiff and the instant workers.

[Reasons for Recognition] Gap's evidence Nos. 2, 7, 9, Eul's evidence Nos. 5 through 7, 15, 16, 18 through 33 and the purport of the whole pleadings

D. Determination

1) According to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the Employment Insurance Act, an eligible recipient shall report to the head of an employment security office by stating the fact of the first application for unemployment recognition that a person who provides labor during the period subject to unemployment recognition and thereafter provides such labor. Pursuant to Article 61(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits. According to Article 61(2) of the Employment Insurance Act, the act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Employment Insurance Act constitutes “the case where

In such cases, the head of an employment security office may order the return of all or part of the job-seeking benefits already paid pursuant to Article 62(1) of the Employment Insurance Act and Article 105(1) of the Enforcement Rule of the Employment Insurance Act, and additionally collect the same amount as the job-seeking benefits paid by fraud or other improper means.

On the other hand, Article 47(1) of the Employment Insurance Act and Article 92 of the Enforcement Rule of the same Act concerning whether the provision of labor constitutes employment, where the provision of labor is set at 60 hours or more (including cases where the contractual work hours per week are set at 15 hours or more) and provides labor, where the provision of labor is made as a daily worker under Article 2(6) of the Employment Insurance Act (including cases where the contractual work hours per week are set at 15 hours or more), where the provision of labor is made as a daily worker under any name such as wages, etc. in return for the provision of labor, or where the provision of labor is received in any name such as wages, etc.,

The scope of employment is very wide, and the provision of labor under Article 69(2) of the Enforcement Decree of the Employment Insurance Act does not require the same degree as employment. Thus, the provision of labor subject to reporting under Article 47(1) of the Employment Insurance Act includes not only the case of being recognized as employment under the Act but also the case of not reaching it. The provision of labor or employment should be determined in light of the nature and content of the work performed on the basis of the above provision, the amount of remuneration, repetition and continuity of the work, etc.

2) In light of the aforementioned legal principles and evidence as to the facts acknowledged earlier, the Plaintiff appears to have reported to the Defendant that the eligible recipient had been working for reemployment after attending the unemployment recognition date, i.e., the Plaintiff’s normal commuting from a third party’s standpoint and engaged in the same business as before, and ii) the Plaintiff’s work to receive overdue wages, unless there are special circumstances such as obtaining an implied guarantee from an employer, etc., i.e., the Plaintiff’s work to work at the workplace. ③ The Plaintiff’s payment of unpaid wages from J company is not in accord with the amount of 11,200,000 won by subrogation of the instant company. However, according to Article 44(2) of the Employment Insurance Act, the Plaintiff’s unemployment benefits should be reported to the Defendant as having been working for reemployment at the unemployment recognition date, and the Plaintiff’s submission of the Plaintiff’s statement or statement to the Defendant, regardless of whether the Plaintiff had been stationed in the instant company or J company during the period subject to unemployment recognition, should be deemed to have continued to present the Plaintiff’s statement or statement.

3) Therefore, it is reasonable to view that the Plaintiff received job-seeking benefits without reporting it to the Defendant even though the Plaintiff provided labor to the instant company or J company, and therefore, the Plaintiff constitutes a person who received job-seeking benefits by fraud or other improper means. The Plaintiff’s above assertion is not accepted in entirety, and the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is so decided as per Disposition.