(영문) 서울고등법원 2011.7.7. 선고 2011누2462 판결

The judgment of the first instance is revoked, and the decision that the defendant revoked the decision to recover the new employment promotion subsidy of KRW 3,890,310 against the plaintiff on January 5, 2010.

Reasons

1. Details of the disposition;

The following facts are either disputed between the parties, or acknowledged as Gap evidence 1, Gap evidence 2-1 through 5, and Eul evidence 2-1, and the whole purport of the pleadings.

A. From December 12, 1993, the Plaintiff is operating a certified tax accountant office in Gangnam-gu Seoul Metropolitan Government 4th floor C of B building.

B. The Plaintiff newly employed D on October 27, 2008 and received a total of KRW 3,890,310 from the Defendant as follows.

A person shall be appointed.

C. On January 5, 2010, the Defendant decided to recover the new employment promotion subsidy of KRW 3,890,310 from the Plaintiff pursuant to Article 35(1) of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010; hereinafter the same) and Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same) on the ground that D is not a worker employed by the referral of an employment security office, etc. (hereinafter the “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff only completed the interview about D before D's request for employment assistance, and did not decide to employ D's employment, and if the defendant received a new employment promotion subsidy, D's employment can be employed.In conclusion, the plaintiff notified D of D's new employment promotion subsidy system under the Employment Insurance Act and requested D's employment assistance to the Worknet (Work-Net) and then caused D's employment. The plaintiff ultimately resolved its unemployment status by employing D's employment. This is ultimately consistent with the purport of the new employment promotion subsidy system, the plaintiff cannot be deemed to have received support for employment promotion by fraud or other improper means, and therefore, the defendant's disposition of this case on a different premise should be revoked illegally.

(b) Related statutes;

It is as shown in the attached Form.

C. Facts recognized

The following facts may be recognized as either in dispute between the parties or in each entry in the evidence of subparagraphs B through B (including each number) of subparagraphs 2 through 6 (including each number):

1) On October 23, 2008, the Plaintiff conducted an interview to employ D through the introduction of his/her office staff to receive the new employment promotion subsidy, and requested D to offer a job placement request to the Worknet, which is an employment support information network operated by the Ministry of Labor, and also request the job placement brokerage to the Worknet.

2) On October 24, 2008, a plaintiff was registered in the Worknet that the plaintiff employed D with the arrangement of the Seoul Gangnam General Employment Center affiliated with the Ministry of Labor.

D. Determination

"False or any other fraudulent means" that can be subject to sanctions against a return order under Article 35 of the former Employment Insurance Act refers to any and all other fraudulent acts committed by an unqualified business owner in order to conceal the eligibility or eligibility to receive payment, which may affect the decision-making on the payment of a new promotion subsidy (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

However, under the ordinary conditions of the labor market, a new employment promotion subsidy is paid to an employer who takes measures necessary for employment security by promoting the employment of workers who are difficult to find a job and preventing their structural deterioration and facilitating their entry into the labor market. Article 23 of the former Employment Insurance Act and Article 26 (1) of the Enforcement Decree of the same Act provide that a person in a unemployment state shall be paid to an employer who newly employs a new job under the "mediation by the employment security office, etc." and this purpose of legislation is to prevent job seekers and job offerers from abusing the above system for the purpose of receiving only the incentives. Thus, even if the employment security service provider does not employ workers through the arrangement by the employment security office, taking the form of hiring workers through the arrangement by the employment security office, etc. for the purpose of receiving the incentives constitutes "false or other unlawful means" under Article 35 of the former Employment Insurance Act.

As to the instant case, health class and employment are constituted by an agreement by which a worker provides labor to the employer and the employer shall pay remuneration to the worker.

Even though D having interview completed the interview requested job placement through the Worknet, which is an employment support information network operated by the Ministry of Labor, it is reasonable to view that the employment relationship was established only by receiving a new employment promotion subsidy and saving the remuneration cost. As such, it is reasonable to view that the employment relationship had already been established between the Plaintiff and D, the new employment relationship is not established only through the Worknet. Even if there is no fixed employment intention until it satisfies the conditions for receiving a new employment promotion subsidy for D, as alleged by the Plaintiff, even if there is no fixed employment intention until it satisfies the conditions for receiving a new employment promotion subsidy for D, it cannot be said that D was an employment established by having D, after completing an interview about D, requesting job placement at the Worknet, and cannot be deemed an employment by the intermediation of the Employment Security Office, etc., and therefore, the receipt of the Plaintiff’s new employment promotion subsidy for the instant case shall be deemed to have been by means of fraud or other unlawful means as stipulated in Article 35 of the former Employment Insurance Act.

Therefore, the defendant's disposition of this case on the same premise is legitimate.

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 just in conclusion, and it is so decided as per Disposition.