2020Nu37033 Revocation of a disposition of business suspension

A

Minister of Employment and Labor

Seoul Administrative Court Decision 2019Guhap68947 decided February 13, 2020

August 21, 2020

September 25, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On October 30, 2018, the defendant revoked one-month suspension disposition against the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reason why this Court shall state in this decision is that "Article 28 (1)" in the 5th sentence of the first instance judgment is "Article 28 subparagraph 1", "Article 28 (1) is "Article 28 subparagraph 1" in the 7th sentence, and "Article 28 (1) is "Article 28 subparagraph 1" in the 12th sentence in the 7th sentence, and the 10th sentence through 12th sentence are the same as the part of the first instance judgment except for the use of the 10th sentence in the 3th to 12th sentence as follows. Thus, it shall be cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of

[1) Whether there is a reason for the disposition

A) Order of determination

On the premise that "the name, name, and address of the job offerer stated in the job offer advertisement published by the plaintiff is false", the defendant's disposition of this case was taken based on Article 36 (1) of the Employment Security Act on the ground that "the plaintiff violated the matters to be observed under Article 28 (1) of the Enforcement Decree of the Employment Security Act."

In this paper, I first examine the meaning of matters to be observed under Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act, along with the legislative purpose, contents and system of the Employment Security Act, and then examine whether the Plaintiff violated the requirements under Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act

B) Legislative purpose and provision system of the Employment Security Act

(1) The Employment Security Act defines "business providing employment information, such as job offer and job-seeking information, by providing all workers with an opportunity to find a job with which they may develop and display their own ability, and by supporting the smooth supply of and demand for the necessary labor force in each industry in cooperation with the government and the private sector (Article 1)." Article 2-2 defines "business providing employment information, such as job-seeking and job-seeking information, by means of computer communications, etc." Article 3 (1) of the Regulations on Handling Business of Employment Information, which is the established rules of the Ministry of Employment and Labor, defines both as "business providing employment information, such as job-seeking and job-seeking information, by providing employment security for workers and contributing to the balanced development of the national economy (Article 2-2)." Article 3 (1) of the Regulations on Handling Business of Employment Information, which is the established rules of the Ministry of Employment and Labor, arranges the establishment of employment contracts by directly linking a specific job-seeking and job-seeking, while business providing employment information is clearly distinguishable from both.

(2) Article 25 of the Employment Security Act stipulates that the person who intends to engage in the business providing employment information shall report the matters to be observed by the person who intends to engage in the business providing employment information (Article 23); Article 25 of the Employment Security Act stipulates that if the job offerer is in arrears with a list of job offerers, such fact shall be posted so that job offerers can find out (Article 1); "no job offerer shall provide information short of the minimum wage (Article 2);" and other matters prescribed by Presidential Decree (Article 28 of the Enforcement Decree of the Employment Security Act upon delegation thereof). Article 28 of the Enforcement Decree of the Employment Security Act stipulates that the job offerer's name, etc. is not indicated or the job offerer's contact address is not clearly indicated as the job offerer's letter, etc. (Article 1; hereinafter referred to as the "Enforcement Decree of this case"); Article 25 of the Enforcement Decree of the Employment Security Act stipulates that the job offerer's address or telephone number shall be stated in the job offerer's advertisement in employment information media; Article 28 (2) of the Employment Security Act.

(3) Meanwhile, Articles 18 through 22 of the Employment Security Act stipulate matters to be reported or registered by a person who intends to engage in free or fee-charging job placement services, matters to be observed and prohibited, and Article 19(6)3 of the Enforcement Decree of the Employment Security Act delegates matters to the Presidential Decree. Accordingly, Article 25 subparag. 3 of the Enforcement Decree of the Employment Security Act provides that "where the business of a job offerer requires permission, report, registration, etc. of an administrative agency, the permission, report, etc. of the job offerer shall be confirmed." Article 18(2) and [Attachment 1-2] of the Enforcement Rule of the Employment Security Act according to delegation under Article 18 subparag. 8 of the same Act provides that "4-2 of the Enforcement Rule of the Employment Security Act shall be one of the matters to be observed by the job offerers and employees."

(4) A person who makes a false job offer advertisement or presents false job offer conditions in violation of Article 34 of the Employment Security Act is subject to criminal punishment (Article 47 subparag. 6 of the Employment Security Act). However, the Employment Security Act does not have a separate provision on the duty to verify identity, etc. of a job offerer, where a job offerer’s business requires permission, report, registration, etc. of an administrative agency, the identity of the job offerer, location of the workplace, telephone number, and the job offerer’s agent’s application for job offer, and excludes those who provide employment information from those subject to the application of prohibition provisions on false job offer advertisements

C) Interpretation of the provision of the Enforcement Decree of this case

(1) Considering the legislative purpose of the Employment Security Act as seen earlier and the language and text of the provision on the matters to be observed by those providing employment information, the purpose of the provision of the Enforcement Decree of the instant case prohibiting posting job offer advertisements in which the identity of the job offerer is uncertain is to ensure the legality of the job offer, thereby preventing the job offerer from providing information, and ensure the job offerer’s identity and job information accurately, thereby ensuring the stability of job-seeking to job seekers.

(2) The instant provision stipulates that a job offerer shall not publish a job offer advertisement in which the identity of the job offerer is uncertain, and that the job offerer's name, etc. is not indicated as a type of job offer advertisement prohibited, or that the job offerer's contact number is indicated as a letter box, etc. The job offerer's name, name, and contact information is the minimum element for job offerer to understand the job offerer's identity. On the premise that job offerer's name or job offerer's name is not stated or the job offerer's name is not stated or the job offerer's telephone number is not stated directly, it can be seen that the job offer advertisement should not be published in which it is unclear that job offerer's name or job offerer's identity is not verifiable.

(3) Meanwhile, in the event of a violation of the matters to be observed under the provisions of the Enforcement Decree of the instant case, administrative laws and regulations, which serve as the basis for such indivative administrative dispositions, shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted or analogically interpreted in the direction unfavorable to the other party to the administrative disposition. Even if the teleological interpretation that takes into account the legislative intent, purpose, etc. is not entirely excluded, such interpretation does not deviate from the ordinary meaning of the language and text (see, e.g., Supreme Court Decisions 2007Du13791, 13807, Feb. 28, 2008; 201Du388, Dec. 12, 2013).

However, the phrase of the provision of this case is limited to the case where the name of the job offerer is not indicated as the type of job offering advertisement prohibited as seen earlier, or the case where the contact information of the job offerer is indicated as the letter of intent, etc., and it does not clearly state that the name of the job offerer, name, and contact information of the job offerer should be consistent with the truth.

In addition, the provision system of the Employment Security Act, i.e., the Employment Security Act clearly separates the job placement service from the job placement service, and unlike the job placement service, in the case of the job offerer, there is no provision on the duty to verify the identity of the job offerer in the case of the job offerer, the location and telephone number of the job offerer, and the job placement agent in the case of the job placement application. In light of the fact that the job offerer is excluded from the job placement service subject to the prohibition provision such as false job placement advertisement, the Employment Security Act does not seem to be premised on the job offerer's duty to verify whether the job offerer's name, name and contact information

In light of the above, even if considering the legislative purpose of the Employment Security Act and the purport of the provision of the Enforcement Decree of this case, interpreting that the phrase "job offering advertisement in which the identity of the job offerer is uncertain" under the provision of the Enforcement Decree of this case includes "in which the name of the job offerer, name, and address of the job offerer is not consistent with the truth" as a matter of course constitutes an interpretation beyond the ordinary meaning of the language and text, it is difficult to accept.

(4) Therefore, it is reasonable to view the job offer advertisement in which the identity of the job offerer is not clearly indicated as the job offerer's name, name, and contact number is not clearly indicated, and thus the job offerer's information on the job offerer's identity is not verifiable. In light of the legislative purpose and regulatory structure of the Employment Security Act and the purport of the provision of the Enforcement Decree of this case, if the job offerer's identity is confirmed at the time when the job offerer's identity was published, and if the job offerer's name, name, and contact information is verified as at the time when the job offerer's identity was stated in detail, it is difficult to evaluate that the job offerer's name, name, and contact information on the job offerer's name are later inconsistent with the truth.

D) Whether the Plaintiff violated the matters to be observed under the Enforcement Decree of this case

(1) As seen in the above 1. B. The phone number of each job offer advertisement at issue in this case is specified in the "name of each job offer advertisement" column, the specific trade name or company name is specified in the "name" column, and the specific name of the job offerer or agent is specified in the "name" column (No. 2). Meanwhile, the "B (N-type No. 2)" column, which is described in the "number of each job offer advertisement listed in No. 2 or No. 6 of the above table, is published by the job offerer in the job offer advertisement, using the " call-based service, which is a telephone connection program for preventing infringement of private life, while using the " call-based service," which is a system of the " Call-fin service" in the above case, and it can be seen that the job offerer's telephone number is connected to the above job offerer's telephone number (C) so it can be seen that all of the job offerer's telephone numbers are connected to the above job offerer's telephone number.

Furthermore, according to the method of operation of the Plaintiff’s job offer advertising website on which each of the above advertisements is posted, in order for a job offerer to post an advertisement, it seems that the job offerer is required to join the membership and that he/she is the person in question by inputting his/her name, date of birth, gender, mobile phone information and certification number through a mobile phone communication provider in

(2) In light of the above legal principles, since each job offering advertisement mentioned above clearly stated the job offerer's name, name, and contact number in the above job offering advertisement and it cannot be deemed that the job offerer's name, name, and contact information in the above job offering advertisement do not coincide with the truth, even if the job offerer's name, name, and contact information stated in the above job offering advertisement do not fit the truth, it cannot be determined that the plaintiff violated the code of practice by inserting "job offering advertisement where the identity of the job offerer is not certain" as provided

(3) Therefore, the Plaintiff’s act of publishing each of the above job offer advertisements specified as the grounds for the instant disposition does not constitute an act of violating the matters to be observed under the provisions of the Enforcement Decree of the instant disposition, and there is no reason for the instant disposition (the Defendant asserted that the Plaintiff violated Article 28 subparag. 6 of the Enforcement Decree of the Employment Security Act through a reference document after the conclusion of the oral argument at the trial, but this cannot be deemed the same in the basic point of view as the grounds for the initial disposition, and thus, the Defendant’s additional grounds for the disposition cannot be permitted).

2. Conclusion

If so, the plaintiff's claim of this case shall be accepted on the ground of its reasoning. The judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Lee Jin-hee

Judges Kim Gin-han