(영문) 의정부지방법원 2019.8.29.선고 2019구합10189 판결

On November 29, 2017, the Defendant revoked the disposition of imposition of KRW 12.925,000 for the return of benefits for reduction of working hours for a period of childcare and additional collection against the Plaintiff.

Reasons

1. Details of the disposition;

A. From September 26, 2016 to July 25, 2017, the Plaintiff applied for a salary for reduction of working hours for a period of childcare to the Defendant on the ground that he/she worked for reduction of working hours for a period of childcare in a stock company B (hereinafter referred to as “B”) and received total of KRW 8,250,000 from the Defendant as the salary for reduction of working hours for a period of childcare from November 7, 2016 to July 7, 2017.

B. On November 29, 2017, the Defendant issued a decision to dismiss the Plaintiff’s dismissal on December 21, 2017, pursuant to Article 62(1) of the Employment Insurance Act and Article 105 of the Enforcement Rule of the Employment Insurance Act, on the ground that the Plaintiff’s failure to work in B after December 1, 2016 and received a total of KRW 6,462,500 for the benefits for the reduction of working hours during the period of childcare from December 1, 2016 to July 25, 2017, the Defendant issued a decision to dismiss the Plaintiff’s dismissal on the ground that the Plaintiff received a request for reexamination on December 26, 2017, but the Plaintiff received a request for reexamination on the ground that the request for reexamination was unlawful on the ground that the request for reexamination was rejected on March 28, 2018.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, 11 and 19, the purport of the whole pleadings

2. Determination

A. The parties' assertion

The plaintiff asserts that the disposition of this case is unlawful because the plaintiff did not have received the illegal supply and demand. Accordingly, the defendant asserts that the lawsuit of this case is unlawful because the period of filing the lawsuit of this case exceeds the period of filing the lawsuit.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Comprehensively taking account of Articles 18(1) and 20(1) of the Administrative Litigation Act and Article 27(1) of the Administrative Appeals Act, when the method of immediately filing a revocation suit against a disposition is chosen with the knowledge of the existence of the administrative disposition, a revocation suit shall be instituted within 90 days from the date when the relevant disposition is known, and when the method of filing an administrative appeal is selected, a revocation suit shall be instituted within 90 days from the date when the relevant disposition is known and within 90 days from the date when the written adjudication on the administrative appeal is served. Therefore, where a revocation suit is not instituted without filing an administrative appeal within 90 days from the date when the relevant disposition is known, the subsequent litigation instituted shall be deemed unlawful since the period of filing an administrative appeal expires, and a subsequent adjudication on the administrative appeal filed within 90 days from the date when the written adjudication is served (see, e.g., Supreme Court Decision 201Du1876, Nov. 24, 2011).

Meanwhile, according to the Employment Insurance Act, the head of an employment security office may order a person who has received benefits for reduction of working hours for a period of childcare by fraud or other improper means to return all or part of the benefits he/she has received, and additionally collect an amount not exceeding twice the amount of such benefits (Articles 74 and 62(1) and (2)). A person who has an objection to such refund or collection may file a request for review with an employment insurance examiner, and a person who has an objection to such decision may file a request for further review with the Employment Insurance Review Committee (Article 87(1)), and such request for review shall be filed within 90 days from the date he/she becomes aware of such decision, and within 90 days from the date he/she becomes aware of such decision (Article 87(2)).

Therefore, in order to file a revocation suit against the refund or collection disposition on the benefits for reduction of working hours during the period of childcare, a revocation suit shall be instituted within 90 days from the date when the relevant disposition is known, or a request for examination or reexamination shall be filed within 90 days from the date when the relevant decision is rendered. In addition, if the request for examination or reexamination is unlawful after the expiration of the period for request for examination or reexamination, and the request for examination or reexamination is filed within 90 days from the date when the request for examination or reexamination is made, it is unlawful as it has expired.

2) Examining the reasoning of the instant disposition in light of the foregoing legal doctrine, the Plaintiff filed a petition for review with an employment insurance examiner on the instant disposition on March 27, 2018, which was served the instant disposition from 12, 26, and 90 days to 2018, and such petition for review is unlawful as it has expired the period for filing the instant lawsuit. Therefore, only if the Plaintiff should have filed the instant lawsuit within 90 days from 12, 26, and 2017 upon receipt of the instant disposition, it would have complied with the period for filing the instant lawsuit. Since the instant lawsuit was filed on January 14, 2019, which was apparent that the lapse of 90 days from the date of the instant lawsuit, it is unlawful as it has expired.

3. Conclusion

Therefore, we decide to dismiss the lawsuit of this case and decide as per Disposition.