(영문) 창원지방법원 2018.7.4.선고 2018구단11129 판결

A. On December 20, 2013, the Plaintiff was paid KRW 6,298,520 as job-seeking benefits for 180 days from December 27, 2013 to June 24, 2014, on the ground that “the Plaintiff was on the part of the Defendant on November 30, 2013, one aggregate management Co., Ltd. (hereinafter referred to as “non-party company”) for the expiration of the contract term.” The Plaintiff filed a request for review of the unemployment benefits period (from February 27, 2014 to June 27, 2014, the Plaintiff was entitled to receive KRW 34,992 for the fixed benefit payment days, and the Plaintiff was paid KRW 6,298,520 for 180 days from December 27, 2013 to June 24, 2014, but the Plaintiff’s request for review of the unemployment benefits amounted to “the Plaintiff’s request for review of the unemployment benefits amount of KRW 17.”

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1 through 6, 8 through 11, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

On March 5, 2014, the Plaintiff should not be employed by the employment center while working in the non-party company. The Plaintiff renounced his/her opinion and gave up his/her employment, and reported this circumstance at the employment center.

The instant disposition that deemed that the Plaintiff had worked or did not report labor was unlawful. Even if it may be deemed that the Plaintiff had not reported, ordering the return of the amount of unemployment benefits for 28 days, not for the two-day portion confirmed to have worked, is a deviation from and abuse of discretionary authority.

B. Relevant statutes

It is as shown in the attached Table related statutes.

C. Determination

(1) According to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the same Act, an eligible recipient shall report to the head of an employment security office, stating the fact on the first application for unemployment recognition which is submitted within the unemployment recognition date after the date he/she provided his/her labor during the period subject to unemployment recognition. According to Article 61(1) of the Employment Insurance Act, a person who 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, an act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Employment Insurance Act constitutes “an act of receiving unemployment benefits by fraud or other improper means” under Article 47(1) of the same Act. In such cases, the head of an employment security office may order the return of all or part of the job-seeking benefits

(2) According to the above evidence, the plaintiff's two-day work event is reported to the National Tax Service, and the plaintiff's two-day work event is paid to the non-party company for two days. Thus, it is reasonable to deem that the plaintiff worked for the non-party company for two days. ② However, it is recognized that the plaintiff did not have any fact of working in the application for the recognition of unemployment on March 26, 2014. ③ The plaintiff's false statement in the application for the recognition of unemployment is recognized, ③ the "false or other unlawful means" under the Employment Insurance Act means all unlawful acts conducted by the non-qualified business owner in order to estimate the eligibility to receive or is not eligible to receive the payment, which may affect the decision-making (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

(3) Next, Article 104 of the Enforcement Rule of the Employment Insurance Act provides that the amount of the job-seeking benefits paid for the period subject to the recognition of unemployment should be returned, in light of its form and content. Article 62(1) of the Employment Insurance Act provides that the criteria for disposition prescribed by the discretionary rules do not conform with the Constitution or laws itself, or that there is no reasonable ground to believe that the disposition in this case is considerably unreasonable in light of the substance of the violation and the content and purport of the relevant statutes. (2) According to Article 104 Subparag. 1 of the Enforcement Rule of the same Act, the order to return the total amount of the illegal receipt should be issued. According to Article 104 Subparag. 2 of the same Act, if a person fails to report any labor among the days he/she intends to obtain the recognition of unemployment, it is reasonable to view that the disposition in this case only seeks the return of job-seeking benefits for the period subject to the recognition of unemployment, and (3) it is reasonable to consider that the Plaintiff was unable to take into account legitimate job-seeking measures, such as job-seeking benefits under the Employment Standards Act.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.