(영문) 울산지방법원 2019.11.21. 선고 2019구합273 판결

A. On April 1, 2008, the Plaintiff was employed at the Asian Association’s business office and retired on November 30, 2017. On December 26, 2017, the Plaintiff filed an application for unemployment benefits with the Defendant on December 26, 2017, and received a total of 240 days of benefits from January 2, 2018 to August 29, 2018.

B. On February 5, 2018, the Plaintiff was commissioned as an insurance solicitor of C Co., Ltd. (hereinafter “C”) on February 5, 2018 after reporting the preparatory activities for running an insurance solicitor business as a consequence of re-employment activities during the period of unemployment benefits, and was paid only 34 days out of the unemployment benefits days during the said 240-day period.

C. The Plaintiff, from C, was dismissed on March 5, 2018, KRW 1,450,50, and KRW 679,61521, March 21, 2018; and KRW 1,373,5402, May 21, 2018; KRW 590,03621; KRW 1,595,340, June 21, 2018; KRW 224,097; KRW 1,46, Oct. 1, 2018; and KRW 1,595,340; and KRW 24,097; and KRW 1,50,96, Sept. 21, 2018; and KRW 37,196, Oct. 21, 2018; and each of the Plaintiff was paid each month as an insurance solicitor.

D. On August 28, 2018, the Plaintiff opened a real estate business and a lease business, completed business registration on August 31, 2018, and actually engaged in real estate sales from July 2018.

E. On December 1, 2018, the Plaintiff re-employed on a six-month contract term (from December 1, 2018 to May 31, 2019, wages: KRW 6 million per month) at the Asian Association’s business office.

F. On February 26, 2019, the Plaintiff claimed the Defendant for early re-employment allowance. However, on April 1, 2019, the Defendant decided and notified the Plaintiff of the refusal to pay early re-employment allowance on the ground that “the Plaintiff continued to engage in the pertinent business (insurance solicitor) for at least 12 consecutive months” (hereinafter “instant disposition”);

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1, 5, 6, 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

As to the provision of Article 84(1)2 of the Enforcement Decree of the Employment Insurance Act, the Defendant is interpreted to be eligible for early re-employment allowance only "where the Defendant continues to engage in the pertinent business reported as a result of re-employment activities for more than 12 months." However, even if the Defendant engaged in a business after converting the category of business reported as a result of early re-employment activities, it is reasonable to interpret that the Plaintiff is eligible for early re-employment allowance if he/she continues to engage in a business for more than 12 months without an interval of time during the period of employment and business. Therefore, it is reasonable to interpret that the Plaintiff is eligible for early re-employment allowance if he/she engages in a real estate sales business without working in C or who is employed

Even if following the Defendant’s interpretation, the Plaintiff was dismissed from C’s insurance solicitor on March 1, 2019, and was employed as C’s insurance solicitor for not less than 12 months, the Plaintiff satisfies the requirements for the payment of early re-employment allowances.

Therefore, the defendant's disposition of this case is erroneous in interpreting and applying the provisions of the Act on the Requirements for Payment of Early Re-employment Allowances, or is found to be erroneous and thus revoked (the plaintiff does not notify the plaintiff that "the plaintiff may receive unemployment benefits from July 2018 if the defendant requested dismissal of the plaintiff to C around the end of June 2018, and the defendant did not inform the plaintiff of various training programs for reemployment." However, the defendant's civil petition treatment of this case was insufficient, such as that the defendant did not inform the plaintiff of various training programs for reemployment. However, the argument related to the legitimacy of the disposition of this case is merely the above argument, and the remaining argument of the plaintiff is not judged separately).

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Relevant legal principles

Article 64(1) of the Employment Insurance Act provides that "the early re-employment allowance shall be paid if an eligible recipient is re-employed in a stable occupation or self-employed business and if the eligible recipient satisfies the criteria prescribed by Presidential Decree," and Article 84(1) of the Enforcement Decree of the Employment Insurance Act provides that "the early re-employment allowance shall be paid if an eligible recipient has been employed continuously for 12 months or longer (the main sentence of subparagraph 1) or where an eligible recipient continues to engage in business for 12 months or longer (the main sentence of subparagraph 2) as of the day immediately preceding the date of re-employment after the waiting period under Article 49 of the Act."

The purpose of the early re-employment allowance is to minimize the period of unemployment and to encourage stable re-employment by paying a certain amount of money equivalent to the unpaid portion of the amount of job-seeking benefits, regardless of whether a beneficiary is re-employed or self-employed prior to receiving all job-seeking benefits. Furthermore, even if the period of job-seeking benefits has been suspended during which job-seeking benefits or payment of remuneration was performed during the period of employment, it is temporary arising from the nature of work itself, and thus, if the employment relationship before and after the period is deemed to continue, the period of temporary suspension shall also be deemed to be included in the "period of continuous employment" as prescribed by Article 84(1)1 of the Enforcement Decree (see, e.g., Supreme Court Decision 2015Du4165, Apr. 24, 2018).

2) Determination

A) Whether it is eligible for the payment of early re-employment allowances only when the reported business continues to be conducted as a result of re-employment activities

Article 84(1)1 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25022, Dec. 24, 2013; hereinafter referred to as the "former Enforcement Decree of the Employment Insurance Act") provides that "where an eligible recipient continues to engage in a business for at least six months for which he/she has been employed," and Article 84(1)2 of the former Enforcement Decree of the Employment Insurance Act provides that "if an eligible recipient reports his/her preparatory activities for running the relevant business as reemployment during the pertinent benefit period pursuant to Article 44(2) of the Employment Insurance Act and is recognized as unemployed, he/she shall be paid early re-employment allowances for at least 12 consecutive months." Article 84(1)1 of the former Enforcement Decree of the Employment Insurance Act provides that "where an eligible recipient continues to engage in a business for at least 12 months, he/she shall be subject to restrictions on re-employment under Article 44(2)1 of the former Enforcement Decree of the Employment Insurance Act."

However, the purport of the Employment Insurance Act paying early re-employment allowances lies in minimizing the period of employment and encouraging stable re-employment. However, if employment or type of business continues to change within 12 months, it is difficult to evaluate such change as a stable re-employment. ② According to the amendment of the enforcement decree of the Employment Insurance Act, the above amendment aims to solve the problem of excluding the eligible recipient from the payment of early re-employment allowances in cases where the business owner changes without the interruption of employment status while employed by the eligible recipient. It does not seem to be the purpose of excluding the eligible recipient from the payment of early re-employment allowances even in cases where the eligible recipient's employment or business changes for 12 months or longer. ③ In cases where the eligible recipient continues to operate the relevant business for 12 months or longer under Article 84 (1) 2 of the Enforcement Decree of the Employment Insurance Act, it is reasonable to interpret the current Enforcement Decree of the Employment Insurance Act to be limited to the case where the eligible recipient reports the preparation activities for running the relevant business as a job and is recognized as a job.

Therefore, on the premise that the defendant's interpretation and application of the requirements for the payment of early re-employment allowance was erroneous, the plaintiff's above assertion disputing the illegality of the disposition of this case is without merit.

B) Whether the Plaintiff continued to conduct the business as C insurance solicitor for at least 12 months

In light of the amount of money received from C after the Plaintiff was commissioned as C’s insurance solicitor on February 5, 2018 and was dismissed on March 1, 2019, the Plaintiff appears to have operated a sales business as an insurance solicitor only until the end of June 2018 (the Plaintiff’s self-employment of the Plaintiff as an insurance solicitor seems to have been recognized until the end of June 2018). Therefore, it is reasonable to deem that the continuity of the Plaintiff’s operation of the business as C’s insurance solicitor was severed since the Plaintiff’s commencement of work at the Asian Association’s business office on December 1, 2018, and thereafter, the continuity of the business as the insurance solicitor was severed after the Plaintiff started to engage in the business as of December 1, 2018 (the suspension of the business operation as above comes from a temporary nature of the business operation itself, and thus, there is no reason to deem that the business operation was continued before and after that period was continued). Therefore, the Plaintiff did not assert the Plaintiff’s payment requirements for allowance for more than three months.

C) Sub-determination

Ultimately, the Defendant did not err in interpreting and applying the Employment Insurance Act and Article 64 of the Enforcement Decree of the Employment Insurance Act and Article 84(1) of the Enforcement Decree of the Employment Insurance Act, which is the premise of the instant disposition, or erred in finding facts about the continuity of business as the Plaintiff’s C insurance solicitor. Thus, the Plaintiff’s above 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.