(영문) 울산지방법원 2011.5.4. 선고 2010구합2894 판결

On August 21, 2009, the Defendant confirmed that a decision on the return of subsidies for employment security programs and additional collection made against the Plaintiff is invalid.

Reasons

1. Details of the disposition and the lawsuit in this case;

A. 1) The Plaintiff reported to the Defendant a business suspension plan from December 1, 2008 to April 30, 2009, and filed an application for the payment of the amount for the portion of December 2008, January 2009, February 2009, and April 2, 2009, among the employment security support funds for the above period (hereinafter referred to as “business suspension support funds”), and received the amount from the Defendant and filed an application for payment for the portion of March 1, 2009.

2) The Defendant investigated the Plaintiff’s actual suspension of business in accordance with the reported business suspension plan, and the Plaintiff filed an application for partial suspension of business even though the Plaintiff did not have any fact of suspension of business and received some of them.

3) Accordingly, on August 21, 2009, the Defendant ordered the Plaintiff to return each of the above closure subsidies received by the Plaintiff on its ground, and applied Article 78 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319 of Apr. 1, 2009) with respect to each of the closure subsidies on January 1, 2009 and February 2 of the same year, it was amended by Ordinance of the Ministry of Labor No. 319 of Apr. 1, 2009; hereinafter referred to as the "Enforcement Rule of the instant case") to pay the following amount by applying Article 78 (1) 3 of the same Act (hereinafter referred to as the "Enforcement Rule of the instant case") and to notify the Plaintiff to pay the same amount additionally as the following table for each of the closure subsidies (hereinafter referred to as "the date of the instant case's suspension of business operations"). Meanwhile, each of the instant cases shall be subject to the same Article 309 (hereinafter referred to as the "Enforcement Rule of the instant case").

A person shall be appointed.

B. The Plaintiff filed the instant lawsuit seeking confirmation of its invalidation on November 2, 2010 by asserting the instant disposition as void as a matter of course on the grounds as delineated below.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 6, Eul evidence 1, 2, 34, Eul evidence 7-1, 2, and 3, and the purport of the whole pleadings

2. Determination on this safety defense

The Defendant brought the instant lawsuit on November 2, 2010, and the Plaintiff filed a lawsuit seeking revocation of the instant disposition on August 18, 2010, which was the previous court No. 2010Guhap2160, Aug. 18, 2010, but changed the said lawsuit to a lawsuit seeking confirmation of invalidity of the instant disposition on November 30, 2010, knowing that the period for filing a lawsuit for revocation was expired under Article 20(1) of the Administrative Litigation Act, and thus, the Plaintiff’s lawsuit constitutes a duplicate lawsuit in relation to the said lawsuit, and thus, is unlawful.

However, the plaintiff stated that the lawsuit was withdrawn on April 6, 2010 at the date of pleading of the case No. 2010-Guhap2160 of this Court, and the defendant agrees within two weeks to the withdrawal of the lawsuit. Since no declaration was made, the above lawsuit was concluded by the withdrawal of the lawsuit. Thus, the above argument by the defendant is without merit.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff violated the Civil Petitions Treatment Act with respect to each business suspension subsidy for January and February 2009, and the provision of the Enforcement Rule of this case was applied to each of the two cases after the expiration of 10 days from the filing date of the application, and thus, the amount additionally collected has increased. (2) The provision of this case is calculated differently on the basis of the "number of requests made or to be made by false or unlawful means during the last five years prior to the detection date of the illegal act". However, in calculating the number of times prescribed in the provision, the "reasonable misconduct itself" should not be included in the "act before the due date". However, the Plaintiff received each business suspension subsidy for January and February of 2009, and calculated all applications for business suspension subsidies for March and April of the same year, and calculated the amount additionally collected before the date of the application. This constitutes a significant and obvious defect and thus, the disposition of this case is null and void.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the argument above A. 1

The "application for employment maintenance support payment (suspension)" under Article 28 and attached Form 32 of the Enforcement Rule of the Employment Insurance Act refers to the plaintiff's assertion that the processing period of the application for employment maintenance support payment is ten days, but the above provision is merely a decoration provision that stipulates that the payment work shall be handled as soon as possible, and it cannot be said that the above provision is a mandatory provision or an effective provision.

As above, as long as the nature of the above provision is identical to the above provision, even if the provision applicable to the plaintiff as the wind to handle the affairs upon the plaintiff's request has changed and the amount to be collected additionally as a result, it cannot be said that there is a significant and apparent defect in the disposition in this case. Thus, the plaintiff's allegation in this part is without merit

In addition, there is room for controversy over the interpretation of the Addenda of the instant Enforcement Rule as to whether the provision applicable to the calculation of additional collection of subsidies for closure on April 1, 2009 and February after the time of application for payment was made before April 1, 2009, which was after April 1, 2009, constitutes the provision of the instant Enforcement Rule or the provision of the amended Enforcement Rule. However, in calculating the number of times pursuant to Article 3 of the Addenda of the instant Enforcement Rule, the Plaintiff shall calculate and apply the number of times received by false or unlawful means after the enforcement of the instant Enforcement Rule, and it is sufficient for the Plaintiff to interpret it as the time of receipt of the base point of time of the fraudulent power included therein in calculating the number of times pursuant to the provision of the instant Enforcement Rule. Therefore, it is not clear that the Plaintiff’s assertion on this part is without merit.

2) Determination as to the argument above A. 2

A) According to the foregoing, the Defendant issued a disposition to additionally collect five times the amount of each of the shutdown subsidies paid in the instant disposition on April 1, 2009 and February after April 1, 2009, pursuant to Article 3 of the Enforcement Rule of the instant case, with respect to each of the shutdown subsidies paid in the instant disposition. This seems to be due to the Plaintiff’s receipt of the shutdown subsidies on April 2, 2009 and on April 8, 2009 by fraud or other improper means, and again, the Defendant again filed an application to receive the shutdown subsidies by fraud or other improper means twice on June 2, 2009, and subsequently subsequently discovered one time after which the Defendant filed an application to receive the shutdown subsidies by fraud or other improper means during the latest five years prior to the discovery of the illegality under Article 3 of the Enforcement Rule of the instant case.

B) (1) According to the provision of the Enforcement Rule of this case, the Minister of Labor may additionally collect the amount of incentives paid by false or other unlawful means during the latest five years prior to the date of detection with respect to a person who has received incentives by false or other unlawful means, in addition to the number of times he/she applied for the return of such incentives by fraudulent or other unlawful means (hereinafter “illegal power”). ① If one or several unlawful acts are discovered at the same time before the date of detection, such unlawful acts may be committed before the date of detection, and thus, if such unlawful acts are interpreted as the one which was committed on the date nearest to the date of detection of such one unlawful acts, it is impossible to present the case under subparagraph 1 of the Enforcement Rule of this case, which is the case where there is no number of such unlawful acts, and ② if such unlawful acts are discovered at least once, it shall be deemed that the defendant received the same amount of incentives or the revised Enforcement Rule of this case’s total number of times prior to the discovery of such unlawful acts cannot be additionally collected at least 10 years prior to the date of the request for additional collection.

(2) Therefore, there is a defect in interpreting and applying the provision of the Enforcement Rule of this case erroneously to the additional collection of each business suspension subsidy for January and February of 2009 among the defendant's disposition of this case (hereinafter "the additional collection part during the disposition of this case"). Furthermore, considering the above recognized facts and various circumstances revealed in the pleading, the scope of the punishment for the degree of the violation is so harsh that the scope of the punishment for the degree of the violation can lose proportionality, and therefore, there is a defect in deviation from and abuse of discretionary power.

C) Determination as to whether the portion to be additionally collected among the instant disposition is void as a matter of course

(1) In order for an administrative disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is objectively obvious as serious in violation of the important part of the law. In determining the importance and apparent of the defect, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, as well as reasonable consideration on the specificity of the specific case itself. In addition, in a case where an administrative disposition was taken by applying a certain provision to a certain legal relation or factual relationship, notwithstanding the absence of room for dispute over the interpretation of the law, the legal principles clearly stating that the provision of the law is not applicable to the legal relation or factual relationship, and thus, if there is room for dispute over the interpretation because the administrative disposition was taken by applying the above provision, it shall be deemed that the defect is grave and obvious, but if the legal principles that the provision of the law is not applicable to the legal relation or factual relation are not clearly revealed, it shall not be said that the administrative disposition

(2) On April 1, 2009, after the enforcement of the provision of the instant Enforcement Rule, it may be interpreted as the Defendant if the language of the provision of the instant Enforcement Rule is interpreted as the same. According to the above facts, the number of times the Plaintiff received or applied to the Defendant by false or other unlawful means after April 1, 2009 when the provision of the instant Enforcement Rule became effective is four times, and thus, it is also possible to take the same disposition as the additional collection from the instant disposition when interpreting and applying the provision of the instant Enforcement Rule in accordance with the language and text. It cannot be said that the additional collection in the instant disposition is unreasonable. The additional collection in the instant disposition is within the limit prescribed by the Employment Insurance Act as the mother corporation, and the additional collection in the instant disposition is within the limit prescribed by the Employment Insurance Act, and there is no opinion that the Defendant did not interpret as it was expressed by the administrative appeals commission or a lower court, but it was in a revocation or revocation lawsuit after the date of the instant disposition. Accordingly, it is obvious that there is no dispute over the Plaintiff’s aforementioned part of the instant disposition.

4. Conclusion

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