2012Nu11562 Order to return employment maintenance support payment and revocation of a decision to additionally collect additional collection, etc.

Dae Young LbnB Co., Ltd.

The Commissioner of the Central and Central Regional Labor Agency;

Suwon District Court Decision 201Guhap13379 Decided April 5, 2012

July 19, 2012

August 30, 2012

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the above part shall be dismissed;

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s order to return KRW 28,282,960 granted to the Plaintiff on April 22, 2011 and the decision to additionally collect KRW 44,219,730, which was issued by the Plaintiff.

2. Purport of appeal

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

The reasons for this Court to be stated are as follows: Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, i.e., Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, on the ground that the reasoning for this Court is as stated in the judgment of the first instance except that the Court determines differently and uses it as follows 2 and 3.

2. Whether the scope of disposition is illegal;

A. Considering the following circumstances, it is reasonable to view that the amount of illegal receipt and payment should be calculated based on the total amount of the relevant worker’s monthly supply and payment, if any, on the basis of the amount returned or additionally collected due to illegal receipt and payment.

① Article 19(1)1 of the Enforcement Decree of the Employment Insurance Act provides that the ratio of the number of days of suspension of business to the number of fixed working days of the insured in the business on a monthly basis shall be suspended in excess of 1/15 of the annual number of days of suspension of business for the insured in the business on the basis of suspension of business, thereby determining whether the insured is eligible to receive subsidies on a monthly basis, and that the application for subsidies and the payment of subsidies on a monthly basis is also made on a monthly basis (Article 29 of the Enforcement Rule of the Employment Insurance Act), it is reasonable to determine whether the insured is eligible to receive subsidies on a monthly basis (Article 29 of the Enforcement Rule of the Employment Insurance Act), and it is also reasonable to determine whether a worker is eligible to receive subsidies on a monthly basis

(2) A business owner who intends to obtain employment maintenance support shall formulate a plan for employment maintenance measures and comply with such plan.

Since employment maintenance measures shall be taken and the above plan shall be reported to the Minister of Labor (Article 20(1) and (2) of the Enforcement Decree of the Employment Insurance Act), compliance with the plan for employment maintenance measures submitted in advance by the

If not, it is reasonable to interpret that the total amount of subsidies for maintaining employment for the pertinent month is not eligible for subsidies. Therefore, if a business operator applied for subsidies by complying with the plan for employment maintenance measures, it is reasonable to deem that the entire amount of subsidies for maintaining employment was illegally acquired, and it is difficult to deem that the portion of subsidies corresponding to the number of days actually suspended is justifiable.

(3) Except as no less favorable to workers when formulating the plan for employment maintenance measures, a consultation with the representative of workers of the business shall be conducted (Article 20(1) of the Enforcement Decree of the Employment Insurance Act). If the employment maintenance support payment is to be made according to the number of days of actual suspension of work for a business operator who fails to comply with the reported plan for employment maintenance measures, the purport of allowing the business operator to consult with the representative of workers may be unreasonable.

(4) Where a worker needs to work due to the circumstances of the business operator, procedures are prepared for filing an application for modification of the plan for employment maintenance measures originally reported to the Ministry of Labor by the day preceding the intended date (Article 31 of the Enforcement Rule of the Employment Insurance Act).

(5) The scope of return or additional collection of a subsidy is difficult to be deemed excessive because it is limited to the subsidy for the relevant month for workers who illegally received the subsidy, not to all the subsidies.

B. Therefore, the Defendant’s disposition of this case, which calculated the refund amount and additional collection based on the report of false fact that the business was suspended during the period of suspension as stipulated in the employment maintenance measure plan, shall be deemed as the amount of illegal receipt even if the date of receiving the subsidy is the day.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety due to the lack of reason, and since the part against the defendant in the judgment of the court of first instance against the defendant is unfair with the conclusion different, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. It

For the assistance of the presiding judge;

Judges Lee Jae-chul

Judge Shin Dong-hun