(영문) 인천지방법원 2014.9.4. 선고 2014구합742 판결

1. The Defendant’s order to return the subsidies for improving the employment environment of small and medium enterprises and the disposition of additional collection against the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On December 22, 2010, the Plaintiff, who is engaged in the manufacturing business of electrical circuit equipment with the trade name of B, submitted a written report on the employment environment improvement and capture to the Defendant to completely repair a dormitory and improve the employment environment. On March 22, 2011, the Defendant approved the improvement plan with the estimated subsidy of KRW 27,02,00 out of the construction cost of the above employment environment improvement project as the estimated subsidy of KRW 46,419,00.

B. On January 31, 2012, the Plaintiff filed a report on the change of the employment environment improvement plan by reducing the scope of construction to 27,022,00 won of a dormitory 2 floor and construction cost. On February 3, 2012, the Defendant approved the change of the employment environment improvement plan on the basis of the estimated amount subsidized for KRW 13,51,00 of the above construction cost.

C. After completing the improvement of employment environment on March 9, 2012, the Plaintiff applied for the payment of subsidies of KRW 13,511,000 as a result of the improvement of the employment environment to the Defendant on June 25, 2012 (hereinafter “instant application”). On July 13, 2012, the Defendant decided to pay the Plaintiff the amount of KRW 14,71,000 (i.e., the amount of subsidies for construction + KRW 13,51,000 + the amount of subsidies for new employment + KRW 1,200,000).

D. On November 14, 2013, the Defendant confirmed the fact that a worker C provided labor for at least two to four days a week at the Plaintiff’s workplace from spring spring in 2010, and issued an additional collection (hereinafter referred to as “instant disposition”) of subsidies to the Plaintiff on February 10, 2014 on the ground that “the Plaintiff reported the acquisition of employment insurance on March 28, 2012 as if he/she newly employed a C who had worked in the workplace prior to the improvement of employment environment after the completion of the improvement of employment environment” on the ground that “the case where the Plaintiff reported the acquisition of employment insurance on March 28, 2012 constitutes illegal receipt” (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 3, 4, 6, 7, 12, Eul evidence Nos. 2 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

A) When the Plaintiff’s wife and the Plaintiff’s wife fall short of one’s losses at the Plaintiff’s workplace, the Plaintiff’s instant disposition was unlawful on a different premise, on the following grounds: (a) the Plaintiff was merely 2-300,000 won per month, not the company personnel expenses or the company expenses; (b) C was not an employee of the Plaintiff’s workplace before the completion of the employment improvement; and (c) C was employed as a regular employee after the completion of the re-employment improvement.

B) The Plaintiff did not exclusively use the subsidies received from the Defendant, and 50% of the construction cost invested in improving the employment environment at the Plaintiff’s expense, and C still worked in the Plaintiff’s workplace. As such, the instant disposition is unlawful as it deviates from and abused discretion.

2) The defendant's assertion

C Since workers worked continuously for at least 15 hours a week at the Plaintiff’s workplace from spring in 2010, the Plaintiff did not meet the requirements for granting subsidies because there is no increase in the number of workers after the employment improvement project. Nevertheless, the Plaintiff filed a false report of employment insurance as if C were newly employed on March 28, 2012 and filed an application for subsidies with at least one average monthly number of workers of the base month (from March 2012 to November 2012) (from September 2010 to November 2010).

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

1) On March 27, 2012, the Plaintiff entered into a labor contract with C and working hours from 9:00 to 17:00 (hour 1 hours); the working day from 1st day to 1.2 million won; and the wages from 1.2 million won.

2) At the time of the Defendant’s business trip investigation, C, at the time of the Defendant’s request from spring in 2010, worked in the Abane form at the time of the Plaintiff’s request. The work date was not fixed, and the daily allowance was received in cash. From March 28, 2012, C, who was employed as a regular employee and worked for from March 28, 2012 to the Fabur day (9:00,000 won per month). The work date is the same as that of the previous and receives KRW 1.2 million per month.

3) On May 1, 2013, when working in the Plaintiff’s place of business and retired on May 1, 2013, the Plaintiff stated that “C was working in the form of one-day duty at the time when one hand is required even before March 28, 2012.”

4) The requirements for the Defendant’s subsidies to improve the employment environment of small and medium enterprises are as follows.

① 고용환경개선을 위하여 시설 설비의 설치에 1,000만 원 이상을 투자한 후 고용환경개선 전보다. 근로자수가 1명 이상 증가② 고용환경개선 완료일이 속한 달과 다음 2개월의 월평균 근로자수(매월 말일 기준)와 고용환|경개선 계획서를 제출한 날이 속한 달의 직전 3개월의 월평균 근로자수(매월 말일 기준)를 비교하여 1명 이상 증가하여야 함③ 다만, 계획서 제출 이후부터 완료일이 속한 전달까지 채용한 근로자는 제외함④ 고용환경개선 완료일이란 '공사 및 설비 설치가 완료되고 일체의 자금집행이 해당 업체에| 지불되었음을 증빙할 수 있는 날'을 말함⑤ 근로자 산정에서 제외되는 근로자(개선 전 후 모두 제외)일용근로자(1개월 미만의 기간 동안 고용되는 자)근로계약기간의 정함이 있는 자(다만 사업완료, 결원충원 등에 필요하여 2년 이상의 근로계약을 하는 경우에는 지원)· 비상근 촉탁근로자1개월간의 소정근로시간이 60시간 미만인 근로자 1주 소정근로시간이 15시간 미만인 자 포

The level of final severance from employment shall be the foreign workers belonging to the relevant business owner.

[Grounds for Recognition] Unsatisfy, Gap evidence 1, Eul's statements in Class 4, 7, and 8, Eul's testimony and the purport of whole pleadings

D. Determination

1) “False or other unlawful means” generally mean all the active and passive acts committed by a business owner who is not entitled to receive subsidies in order to conceal the eligibility to receive subsidies or to conceal that he/she is not entitled to receive subsidies (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009). First of all, whether the Plaintiff is entitled to receive employment improvement subsidies, i.e., whether the Plaintiff is eligible to receive employment improvement subsidies, by entering into a labor contract on March 27, 2012 with C and having the Plaintiff work on March 28, 2012 from March 201 to May 2012, 2012, the average average number of workers (based on the last day of each month) from March 3, 2012 to October 1, 2010 to September 10, 2010.

2) Article 20 of the Employment Insurance Act and Article 15(2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010; hereinafter the same) provide for the payment of subsidies for improving the employment environment for small and medium enterprises (Article 7(1)2 of the former Regulations on the Payment of Subsidies for improving the employment environment for small and medium enterprises (Article 2010-13, Dec. 8, 2010; hereinafter referred to as the “Notice of the Ministry of Employment and Labor”) to determine matters concerning the application, payment, etc. of subsidies for improving the employment environment for small and medium enterprises, as one of the requirements for the payment of subsidies for improving the employment environment, and the monthly average number of workers (excluding the number of workers employed from the submission date of the improvement plan to the delivery date of the improvement plan to the completion date of the employment environment) for the second two months following the date of submission of the improvement plan. Article 8(1) of the same Act provides for workers below the prescribed working hours for less than 16 months.

In light of the purport of the aforementioned relevant provisions, “in the event of an increase in employment” under Article 15(1) of the former Enforcement Decree of the Employment Insurance Act shall not be deemed to be limited to the case where a worker who does not have worked in the relevant workplace is newly employed, but shall also be deemed to include the case where the working conditions of the worker who worked less than 60 hours per month or less than 15 hours per month or who was employed less than 60,000 won per month are changed to the extent that it does not fall under any subparagraph of Article 7(1) of the instant

In light of the following circumstances, even before the completion of the employment environment improvement, C paid KRW 20-3 million to C as the case cost according to the situation before March 28, 2012, and it appears that C did not process the said money for operating expenses at the Plaintiff’s workplace or did not enter it in the wage ledger. However, prior to March 28, 2012, C constitutes the Plaintiff’s workplace for less than 60 hours per month, less than 15 hours per week, or less than 60,000 won per week, or less than 150,000 won per month, or less than 60,000 won per month, which can be known by the overall purport of the records and arguments in this case, and the Plaintiff’s employment disposition was unlawful under the premise that C’s workplace was against another employee on the premise that it constitutes a separate employee on March 28, 2012.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.