[1] Whether a nominal business owner who only lends his/her name to a company that received support for employment security and vocational skills development programs by improper means constitutes “a person who received support” under Article 35 of the Employment Insurance Act (affirmative in principle)

[2] In a case where an entrepreneur established for music performance, etc. received new employment promotion incentives by illegal means, the case holding that it is lawful to order him/her to return incentives and to additionally collect incentives on the ground that a nominal entrepreneur who leased the business owner's name constitutes "a person who received subsidies" under Article 35 of the Employment Insurance Act

[1] The financial resources required for employment insurance consisting of money collectible under the Employment Insurance Act, reserves, earnings from fund management, and other revenues (Article 78(2) of the Employment Insurance Act). Since employment security and vocational skills development support is provided by the Employment Insurance Fund created by the National Treasury, etc., the refund and additional collection of the amount subsidized by unlawful act differs from the nature of tax collection, return of retirement pension in the nature of post-paid wages, etc. In addition, when applying for new employment promotion subsidy under the relevant provisions of the Employment Insurance Act, it is difficult to view that a business owner under the name of the competent administrative agency is in the actual right to examine whether the business owner is in conformity with the actual business owner. In addition, if a nominal business owner is not a direct cause for such unlawful act, it is reasonable to assume liability as a nominal business owner even if the nominal business owner is not a nominal business owner. If it is not deemed as such, it is possible for the business owner to use it as a means to avoid liability by asserting that he is only the business owner, and if the name of the business owner can act as an element that may undermine legal stability.

[2] In a case where an entrepreneur established for the purpose of music performance, etc. received new employment promotion incentives by illegal means, the case holding that it is lawful to order him/her to return the incentives and to additionally collect them on the ground that the nominal entrepreneur who leased the business owner's name constitutes "a person who received subsidies" under Article 35 of the Employment Insurance Act

[1] Article 35 of the Employment Insurance Act / [2] Article 35 of the Employment Insurance Act

[1] Supreme Court Decision 2007Du5639 decided Jul. 24, 2008 (Gong2008Ha, 1245)

Plaintiff (Attorney Lee Dong-sung, Counsel for the plaintiff-appellant)

The Commissioner of Busan Regional Labor Administration

Busan High Court Decision 2008Nu2897 decided January 9, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Article 35 of the Employment Insurance Act provides that “The Minister of Labor may restrict assistance or return already provided to a person who has received or intends to receive assistance for employment security and vocational skills development programs under the pertinent provision by fraud or other improper means, as prescribed by Presidential Decree.” In addition, an order to return such assistance may be collected in an amount not exceeding the amount that is paid by such fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor.” In addition, funds necessary for employment insurance are created with money to be collected, reserve funds, earnings, and other income (Article 78(2) of the Employment Insurance Act) provided by the Employment Insurance Act, as well as funds provided by the National Treasury for employment security and vocational skills development programs, the return and additional collection of subsidies by improper means differing from that of tax collection, the return of retirement pension of the nature of subsequent wages, and it is difficult to view that the competent administrative agency’s actual right to review if a person applies for new employment promotion subsidy under the relevant provision of the Employment Insurance Act is not a legitimate person who is subject to the Supreme Court’s decision-making based on its own name or other unlawful means.

In light of the above legal principles and the facts acknowledged by the court below, the court below acknowledged that the plaintiff himself made it possible to receive the subsidy through his account by making it clear that he would be paid the subsidy for new employment promotion to the defendant in his own account as well as the business operator of the ○○○ Maong-dong Group. In light of the above legal principles and the facts acknowledged by the court below, the plaintiff can only be viewed as a person who received the support for employment security and vocational skills development pursuant to Article 35 of the Employment Insurance Act even if he is the mother. Accordingly, the judgment of the court below corresponding thereto is just, and there is no error of law such as misunderstanding of legal principles as to the requirements for return of the subsidy by improper act, as alleged in the ground of appeal

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)