(영문) 수원지방법원 2018.12.5.선고 2018구합70821 판결

The Defendant’s disposition of ordering return of KRW 10,419,780 (including the amount additionally collected) to the Plaintiff on July 12, 2018 shall be revoked.

Reasons

1. Details of the disposition;

A. The plaintiff is a corporation that operates job placement business, etc., and B is the representative director C of the plaintiff, and is the plaintiff's internal director and the actual manager.

B. On July 12, 2018, the Defendant issued an order to return KRW 10,419,780 to the Plaintiff (hereinafter “instant disposition”) on the ground that D, who was an employee of the Plaintiff, concealed the fact that D had been employed in the Plaintiff’s workplace, and received the total amount of KRW 5,209,890 on five occasions from September 30, 2016 to January 27, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Relevant statutes;

The entries in the attached statutes are as follows.

3. Summary of the plaintiff's assertion

A. procedural defect

① In relation to the instant disposition, the Plaintiff did not receive a written disposition stating the grounds, reasons, etc. of the disposition from the Defendant, and did not receive a written disposition stating the affiliation, name, and contact information of the disposition administrative agency and the person in charge of the administrative disposition, and there was no notification as to whether to file an administrative appeal or administrative litigation. Therefore, it cannot be deemed that

(2) In addition, the Plaintiff did not comply with the lawful prior notification procedure, on the grounds that there was no prior notice given by the Defendant regarding the instant disposition, on the grounds that the Plaintiff did not submit an opinion to the effect that it was entitled to submit an opinion on the grounds for the disposition, the facts constituting the grounds for the disposition, the contents of the disposition, and the legal basis thereof

B. On May 23, 2018, “the confirmation of fact, such as the telephone, etc., prepared by the investigator in charge of substantive defects” includes that B made a telephone call to the investigator around 14:20 on May 23, 2018 and provided information to D to the effect that B paid benefits in cash to the investigator before reporting the fourth insurance against D. The Plaintiff sent benefits to the investigator on May 25, 2018, and the investigation report was made by the Plaintiff. In addition, although B was investigated by E investigator every time, the protocol of statement and the protocol of examination were written by other investigator than the E investigator. As such, the instant disposition was unlawful. Even if the principal payer following the Defendant’s order to return unemployment benefits was not D, the Plaintiff’s principal payer, and D was written as the other party to the payment notice, which was written as a joint and several payment, and this is a misunderstanding of the legal principles as to the Defendant’s disposition.

A. In addition, even though the Defendant issued an order to return KRW 8,355,800, the instant disposition to pay KRW 10,419,780 was issued, and the additional amount collected was arbitrarily increased, and thus, the Plaintiff is not liable for this part.

D. B did not have conspired with D regarding the illegal receipt of unemployment benefits in D, and the Plaintiff did not have any profit from the illegal receipt of unemployment benefits in D, and considering the fact that the Plaintiff is in a situation where D had no financial ability, as it is in fact responsible for the return order, and that B was aware of the illegal receipt of unemployment benefits in D and intended to correct the illegal receipt of unemployment benefits in D, the instant disposition was unlawful since it was too harsh to the Plaintiff, thereby abusing and abusing its discretion.

4. The legality of disposition.

A. Determination on the procedural defect argument

1) Method of disposition

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall, when taking a disposition, present the basis and reasons therefor to the parties, and the purport thereof is to exclude arbitrary decisions of the administrative agency and to enable the parties to properly cope with the administrative remedy procedure. Therefore, in full view of the contents stated in the written disposition, relevant statutes, and the overall process up to the relevant disposition, if it is sufficiently possible to determine whether the disposition was made for any reason, and it is deemed that there was no particular hindrance to the party’s moving into the administrative remedy procedure, then the disposition cannot be deemed unlawful due to such failure, unless the grounds and reasons for the disposition are specified in the written disposition (see, e.g., Supreme Court Decision 2011Du18571, Nov. 14, 2013).

Based on the above legal principles, the following facts or circumstances, which can be recognized by the overall purport of each statement and pleading evidence Nos. 3, 5, and 6, the defendant sent a written disposition to the plaintiff, i.e., the defendant, and the above written disposition contains a statement that the employment insurance examiner may request an examination (within 90 days from the date of proposal and peremptory period) pursuant to Article 87 of the Employment Insurance Act if he/she objects to the disposition of unjust supply and demand (vocational benefits, etc.). The defendant also includes the defendant who is the disposition agency, the defendant is also stated, although the law of the basis of the return order in the notice of payment does not stipulate the law, the plaintiff does not legally file the lawsuit of this case, it is difficult to view the disposition of this case as unlawful merely because there is no law specified in the notice of payment, and there is no other defect in the method of the disposition of this case. Therefore, the plaintiff's assertion in this part is without merit.

2) Prior notice of the disposition

Article 21(1) of the Administrative Procedures Act provides that in cases where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, the administrative agency shall notify the party concerned of the facts constituting the grounds for such disposition, details of such disposition, and legal basis thereof in advance. This purpose is to ensure that the party concerned has an opportunity to present his/her opinion in a substantive manner prior to such disposition. Therefore, considering the contents stated in the prior notice and the degree of the party’s opinion expressed in the whole process up to the relevant disposition, in a case where it is deemed that there is no particular hindrance in stating his/her opinion in the process of stating his/her opinion after such prior notice, even if it does not specifically state the grounds for such disposition, grounds for such disposition, or grounds for such disposition, such defect shall be deemed cured, and thus, it cannot be said that such disposition is unlawful.

In light of the aforementioned purport of the prior notification system, B, upon considering the overall purport of the arguments in the statement of evidence Nos. 6 and evidence No. 8, B, upon receipt of prior notification of the restriction on payment of unemployment benefits under Articles 61 and 62 of the Employment Insurance Act and the order of return of KRW 10,419,780 in relation to the disposition of non-payment of employment insurance under Articles 21 and 22 of the Administrative Procedures Act, etc. on June 14, 2018, I will present their opinions as follows. I did not agree to receive non-payment of D, and I (Plaintiff) did not inform the non-payment of D's unemployment benefits in order to correct the false notification date of acquisition of D's employment insurance, I signed the written statement of opinion that I submitted it to the defendant, and the above written statement of opinion stated that the prior notification under Article 21 of the Administrative Procedures Act was made according to the above statement of opinion. Accordingly, the plaintiff's opinion that the above disposition of this case did not interfere with the plaintiff's opinion.

B. Determination of the substantive defect assertion

1) Illegal acts committed by investigative agencies

According to the purport of the evidence Nos. 8, 9, and 10 of the evidence Nos. 9 and 10, the fact that B reported to the investigator in charge of the illegal receipt of D’s unemployment benefits, and the fact that the investigator in charge received the payment transfer details of D from B to B by facsimile on June 1, 2018 and prepared the relevant report. As long as such facts are acknowledged, even if the investigator in charge entered the investigation report differently from the fact of the payment method of B’s monetary date or payment of benefits to D, such defect alone cannot be deemed unlawful. Furthermore, it is insufficient to acknowledge that the special judicial police officer described in the evidence Nos. 12 and 14 of the evidence No. 12 through 14 is the investigator who did not directly investigate B, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s assertion on this part is without merit.

2) According to the purport of Gap evidence Nos. 3 and Eul evidence Nos. 7 and the whole arguments, the part stating "D joint and several liability" in a notice for payment of D's unemployment benefits to the plaintiff is meaningful that the plaintiff is jointly and severally liable, and it cannot be deemed that the plaintiff is the principal payer and D is the joint and several payer. Thus, the plaintiff's assertion on this part is without merit.

3) According to Article 62(1) and (2) of the Employment Insurance Act and Article 105(1) of the Enforcement Rule of the Employment Insurance Act, the head of an employment security office may order a person who received job-seeking benefits by fraud or other improper means to return all or part of the job-seeking benefits, and the head of an employment security office may additionally collect an amount equivalent to 100/100 of the amount of the job-seeking benefits received by the person who received the job-seeking benefits. However, if the person who received the job-seeking benefits by fraud or other improper means is faithfully complied with an investigation, and the immediate payment of the job-seeking benefits is promised in writing, 60/10 of the amount of the job-seeking benefits received shall be additionally collected. If the person who received the job-seeking benefits by fraud or other improper means makes a false report, report, or certification, the employer is jointly and severally liable with the person who received the job-seeking benefits. The person who first notified the Plaintiff of the case that the Defendant did not immediately pay the amount reduced to KRW 10,419,780,80.

(iv) the deviation and abuse of discretionary power;

The determination of whether a punitive administrative disposition deviates from or abused the scope of discretionary authority should be made by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the relevant disposition, by objectively examining the substance of the violation, which is the reason for the disposition, and the public interest to be achieved by the relevant disposition, and all the relevant circumstances. In addition, even if the criteria for punitive administrative disposition are prescribed in the form of Ordinance, it is nothing more than that prescribed by the administrative agency’s internal rules for handling affairs, and it is not effective externally, and whether such disposition is legitimate or not must be determined in accordance with the relevant Acts and subordinate statutes, not only the above criteria for disposition but also with the purport of the relevant Acts and subordinate statutes. Thus, the above criteria for disposition cannot be deemed legitimate as it does not conform with the Constitution or Acts, nor should it be determined that a prepaid administrative disposition in accordance with the above criteria for disposition would deviate from the scope of discretionary authority or abuse its discretionary authority (see, e.g., Supreme Court Decision 2007Do964, Sept. 20, 2007).

Based on the above legal principles, the concept of "business owner's agent, employee, or other worker" included in the concept of "business owner's false report" under Article 62 (2) of the Employment Insurance Act can be a serious obstacle to achieving the administrative purpose of preventing unfair job-seeking benefits if the business owner was not aware of or was not negligent in the business owner's exemption from liability for the reason that the business owner did not know of such fact. The violation of the duty under the Administrative Act does not require intentional or negligent act, unlike criminal punishment that requires strict intentional or negligent act as a requirement for liability, the plaintiff needs to assist the business owner to start job placement business, and as a result, D's 4th insurance acquisition date is falsely reported so that D's unlawful unemployment benefits can be received, and Article 105 of the Enforcement Rule of the Employment Insurance Act does not apply to the case where the business owner's exemption from liability for job-seeking benefits is made due to the business owner's false report, etc. Therefore, it is difficult to find that it conforms with the purpose of the above provision of disposition guidelines and guidelines for internal disposal of job-seeking.

5. Conclusion

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