Whether taking office as the representative director of a corporation constitutes “employment in employment” under Article 84(1)1 of the Enforcement Decree of the former Employment Insurance Act (affirmative in principle)

(4) Article 64(1) of the former Employment Insurance Act (amended by Act No. 8781, Dec. 21, 2007; hereinafter “Act”) regarding early re-employment allowances paid to an eligible recipient prior to being paid job-seeking benefits for all specified days of job-seeking benefits; Article 84(1) and Article 86(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 20681, Feb. 29, 2008; hereinafter “Enforcement Decree”) provides that if an eligible recipient is found to have no specific job-seeking benefits for the purpose of ensuring the stability of employment and employment, it shall be deemed that the current Enforcement Decree of the Employment Insurance Act’s new employment benefits for the purpose of ensuring the stability of employment and employment of the representative director, and thus, Article 109(2) of the former Enforcement Decree of the Employment Insurance Act’s new employment benefits for the purpose of stable re-employment, regardless of whether the eligible recipient is re-employment or re-employment, it shall be deemed that the aforementioned provision has been applied mutatis mutandis.

Article 64(1) of the former Employment Insurance Act (amended by Act No. 8781 of Dec. 21, 2007); Articles 84(1) and 86(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 20681 of Feb. 29, 2008); Article 109(2) and (3) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 299 of Apr. 30, 2008)

Plaintiff

The Administrator of the Korea National Labor Agency;

Seoul High Court Decision 2009Nu3400 decided September 1, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

Article 64(1) of the former Employment Insurance Act (amended by Act No. 8781, Dec. 21, 2007; hereinafter “the Act”) provides that “Early re-employment allowances shall be paid in compliance with the criteria prescribed by Presidential Decree, where an eligible recipient re-employment at a stable occupation or self-making business for profit,” and accordingly, Article 84(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 20681, Feb. 29, 2008; hereinafter “Enforcement Decree”) provides that “where an eligible recipient has been employed before receiving full payment of job-seeking benefits for the specified benefit payment period, he/she is found to have been employed for at least six months” (the main sentence of subparagraph 1) and “where an eligible recipient is engaged in a profit-making business for which he/she has been employed for at least six months, he/she has reported his/her reemployment to engage in the pertinent business for profit-making purposes” (Article 84(1) of the Enforcement Decree of the Employment Insurance Act).

Meanwhile, Article 86(1) of the Enforcement Decree provides that “A qualified recipient who intends to receive early re-employment allowances under Article 64 of the Act shall submit an application for early re-employment allowances to the head of the employment security office having jurisdiction over his/her residence along with the documents prescribed by Ordinance of the Ministry of Labor, such as recipient certificates.” Accordingly, Article 109(2) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 299 of Apr. 30, 2008) provides that “A written employment contract shall be attached to the documents to be employed for business, and a written employment contract shall be attached to the documents to prove that the applicant is actually engaged in business, such as a prospectus, an office rental contract, or tax evidentiary documents.” Article 86(3) provides that a public official in charge of receiving an application for early re-employment allowances shall have the applicant confirm the business registration certificate through the joint use of administrative information pursuant to Article 21(1) of the Electronic Government Act

In addition to the contents, form, and purpose of the relevant laws and regulations, and ① early re-employment allowance, in cases where an eligible recipient becomes able to obtain income through stable re-employment regardless of whether job-seeking benefits are re-employed or not before receiving all job-seeking benefits, with a view to minimizing the actual period of employment and encouraging stable re-employment by paying an amount equivalent to a certain percentage of the unpaid part of the job-seeking benefits, so if the eligible recipient was appointed to the representative director of the company, it is reasonable to deem that the early re-employment allowance is paid as well as the above purport. ② Article 84(1)1 of the Enforcement Decree of the Act provides corresponding provisions that correspond to the "employment for employment" under Article 64(1)1 of the Act that correspond to the "employment for a stable job-seeking" and thus, it cannot be deemed as having the nature of employment as provided for in Article 655(1) of the Civil Act. ③ The representative director of the company, among the directors, can be deemed as having been employed by the representative director of the company, and thus, it cannot be readily determined as constituting a new employment contract (see Article 1).

Nevertheless, the court below determined that the appointment of the representative director of a corporation constitutes the above subparagraph 2 on the premise that the application of Article 84 (1) 1 and 2 of the Enforcement Decree is distinguished depending on the "whether the subject of early re-employment has insured status" only for the reasons stated in its holding. In this case, the court below erred by misapprehending the legal principles as to the above provisions of the Enforcement Decree, which affected the conclusion of the judgment.

Therefore, without examining the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)