(영문) 수원지방법원 2020.9.11. 선고 2020구단7171 판결

The Defendant’s order of return of KRW 13.5 million against the Plaintiff on January 15, 2020 and disposition of revocation of the decision of additional collection.

Reasons

1. Details of the disposition;

A. The Plaintiff is a representative in the name of “C” (hereinafter referred to as “instant company”) of manufacturing and selling business entity, such as pets, etc., located in Sii-si, Sii-si, and Nonparty D is the Plaintiff’s spouse and a person who actually operates the instant company.

B. On November 2, 2016 and February 3, 2017, the Plaintiff: (a) newly recruited Nonparty E, who completed the employment success program, to the Defendant on June 7, 2016; (b) applied for the incentives for employment promotion; (c) received the incentives totaling KRW 4,50,000,000, including KRW 2250,000 on January 4, 2017 and KRW 2250,00 on February 15, 2017.

C. On November 27, 2019, the chief of the Ansan-gu Police Station knew that the above D could receive employment promotion incentives in collusion with E, employed a new person who completed the employment success program, and maintained employment for a certain period after maintaining the employment. On September 2015, the chief of the Ansan-gu Police Station requested the instant enterprise to complete the employment promotion incentives program, which was employed on employment by around September 2015, and requested the Defendant to receive the employment promotion incentives with the above total amount of KRW 4.5 million as if he newly employed, and notified the Defendant of the results of the investigation that D and E were sent to the prosecution by means of a charge of violating the Subsidy Management Act.

D. Accordingly, on January 15, 2020, on the ground that the Plaintiff received the incentive for employment promotion by false means, the Defendant issued a return order to the Plaintiff for the amount of KRW 4.5 million and a decision to additionally collect the amount of KRW 9 million (hereinafter collectively referred to as “instant disposition”) pursuant to Article 35 of the Employment Insurance Act.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 to 4, 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

On September 13, 2015, the Plaintiff employed E temporarily from the instant business entity due to the aggravation of domestic competition, etc., and subsequently recommended E to retire on April 2016, the Plaintiff agreed to employ a regular employee upon completing the employment assistance program publicly notified by the Minister of Labor, and recommended E to complete the program. Accordingly, the Plaintiff completed the employment success program publicly notified by the Minister of Employment and Labor around May 13, 2016, and thereafter the Plaintiff was regularly employed as a new employee of the instant business entity and received the employment promotion subsidy by requesting the Defendant. As such, considering the fact that E ordinarily completed the employment assistance program and the Plaintiff hired the temporary employee as a regular employee, the Plaintiff should be deemed to have received the employment promotion subsidy for the instant temporary employee, and all employment promotion subsidies received by the Plaintiff as the payment of the employment promotion subsidy, the instant disposition cannot be deemed unlawful on the premise that the Plaintiff received the subsidy by fraudulent or other unlawful means.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

Article 35(1) and (2) of the former Employment Insurance Act (amended by Act No. 16557, Aug. 27, 2019) refers to any unlawful act committed in order to conceal the eligibility for, or the eligibility for, the payment of, subsidies for employment security, etc., return orders, and additional collection under Article 35(1) and (2) of the former Employment Insurance Act (amended by Act No. 1657, Aug. 27, 2019). “False or other unlawful means” means any active and passive act that may affect the decision-making on the payment of subsidies, which is conducted in order to conceal the fact that a person is not eligible for, or is not eligible for, the payment of subsidies even though he/she is not eligible for, such as false or fraudulent means. However, in order to deem the “cases where a person has received subsidies by means of fraud or other wrongful means, there is an act recognized as illegal by social norms, such as concealment, concealment, etc.

In light of the above legal principles, in full view of the following facts and circumstances, it is sufficient to recognize that the Plaintiff received the incentive for employment promotion by fraudulent means, and that the Plaintiff’s assertion is not acceptable, since the Plaintiff’s assertion is not acceptable.

① Article 26(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 30593, Mar. 31, 2020) which provides for the requirements for the payment of the incentives for employment promotion provides that "the person who has registered himself/herself with an employment security office, etc. and employs any of the following unemployed persons as the insured" provides that "the person who has completed the employment promotion subsidy for those who have particular difficulty in employment under the ordinary conditions of the labor market as publicly notified by the Minister of Employment and Labor" under subparagraph 1 provides that "the person who has completed the employment promotion subsidy for those who have a difficulty in employment" shall be eligible for the incentives for employment promotion only when he/she employs the unemployed, i.e., a person who has an intention and ability to work despite being employed. As seen below, it is clear that E is not eligible for the incentives for employment promotion even if he/she is employed, and even if he/she was employed, it cannot be viewed as a case where he/she was employed as a temporary worker as claimed by the Plaintiff:

② After being examined by the police in the instant case, E stated that “Around September 2015, who had been employed by the instant company as an office worker and had been employed by the end of January 2017, and had been employed by the company president, D applied for employment success program on April 14, 2016, and completed the same on May 13, 2016.” The said program cannot be applied for a person who is employed to provide counseling and vocational training to unemployed low-income young people so that they can be employed, and even after being employed by the instant company, he/she had been employed by the instant company, applied for and completed the employment success program while hiding the employment success program, thereby allowing the instant company to receive the employment promotion subsidy unlawfully.”

③ The Plaintiff’s spouse and the actual operator of the instant enterprise, who were the Plaintiff’s spouse, was investigated in the police, and as a result of the investigation, instructed E to apply for employment promotion subsidy on the ground that “I would be able to find and explain in the consulting company, and if there is any person who is not registered as an employee, I would be able to apply for employment success program. The instant enterprise is a concept of temporary employment for six months, and thus, I considered E as an eligible person. Since the instant program is a concept of temporary employment for six months, the employee already employed and working for the work is not for the unemployed but for the work for the unemployed, it is recognized that E would receive employment promotion subsidy by forcing E to apply for employment success program with knowledge that there is no corresponding matter in the instant case as E.”

④ As above, in the business entity’s certificate (No. 11) submitted on November 23, 2016 in relation to the application for the employment promotion subsidy related to E from September 2015, E indicated as “(E) employment route: F job offer advertisement, interview date: June 2, 2016; and date of membership: June 7, 2016.” In addition, among the items to be verified by the business owner of the above certificate, there are items that “the person eligible for the subsidy has provided labor to E, regardless of whether or not he/she has subscribed to, or has reported on, employment insurance, such as internship, training, and part-time employment insurance, or whether or not he/she has provided labor to E?” However, there is no content in the response column.

(1) The plaintiff argues that the above certificate is a document that may not be prepared by the plaintiff, but the plaintiff's signature and seal is affixed to the above certificate, and the above certificate is submitted in relation to the application for the promotion subsidy related to E and the promotion subsidy was paid to the plaintiff according to the contents of the above certificate. In light of the fact that the above certificate is not directly prepared by the plaintiff, the above certificate is prepared and submitted by the plaintiff "D, the actual operator of the business of this case, or the employees of this case, etc. of this case", even if not directly prepared by the plaintiff, the above certificate is prepared and submitted by the plaintiff

On November 23, 2016, E also prepared and submitted a written confirmation of "worker Employment Promotion Support Fund" (Evidence No. 12) to the Defendant, and E retired from G Co., Ltd. which is the last working place on August 2015, and stated that the instant company entered the job interview on June 6, 2016 through the job offer advertisement and entered that the Defendant was employed in the instant company on June 7, 2016. Meanwhile, the Defendant’s public official visited the instant company on November 8, 2016 through the job offer advertisement and stated that E was not having worked in the instant company before acquiring the employment insurance.

6. In the case of "Guidance for Employment Promotion Support Assistance" (No. 15) signed and sealed in the name of the plaintiff, it is stipulated that the "person who has completed the employment support program in accordance with the notification of the Ministry of Employment and Labor" is eligible for employment promotion subsidy.

7) As described in paragraph (c) above, D in collusion with E in a false manner, issued a summary order of KRW 1,500,000 on December 27, 2019 on the facts constituting an offense (Fraud and Violation of the Subsidy Management Act) that received the incentives for employment promotion, and filed a request for formal trial. Accordingly, a criminal trial was initiated. On June 16, 2020, the trial court of the first instance convicted of all the above facts constituting an offense, and sentenced D to a fine of KRW 2,00,000,000,000,000,000,000, was finalized as it is.

(Korean District Court 2020, 75)

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.