2010 Gohap12133 Revocation of the disposition of imposition of penalty surcharge

A

The Head of the Central Regional Employment and Labor Office;

November 24, 2010

December 22, 2010

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of additional collection of KRW 64,920,000 against the Plaintiff on January 11, 201 is revoked.

1. Details of the disposition;

A. The Plaintiff is the representative of B running a specialized construction business. The Plaintiff took employment maintenance measures (e.g., pay leave or suspension) for workers C, D, E, F, and G (hereinafter “C, etc.”) whose adjustment was inevitable, and on May 22, 2009, applied for employment maintenance support payment for the Defendant on April 10, 2004, and received KRW 2,400,000 as of June 10, 2009, from the following time:

A person shall be appointed.

A person shall be appointed.

B. However, around June 24, 2010, the Defendant discovered the fact that the employees, such as C, who reported the Plaintiff to be suspended from business, had gone to a foreign business trip as indicated in the following Table ‘The Table ⅔ during the suspension period, the Plaintiff, unlike the fact, falsely prepared and submitted commuting cards and the status of suspension of business, etc., and applied for employment maintenance support payment by fraudulent or other illegal means.

A person shall be appointed.

A person shall be appointed.

C. Accordingly, on July 12, 2010, pursuant to Article 35 of the former Employment Insurance Act (amended by Act No. 10339, Jun. 4, 2010; hereinafter referred to as the "former Employment Insurance Act"), Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22269, Jul. 12, 2010; hereinafter referred to as the "former Enforcement Decree of the Employment Insurance Act") and Article 78 and Article 78 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter referred to as the "Enforcement Rule of the Employment Insurance Act prior to the amendment"), the Defendant additionally collected the Plaintiff’s subsidies from June 10, 201 to July 11, 201; hereinafter referred to as the “former Enforcement Rule of the Employment Insurance Act”) and additionally collected the subsidies from the Plaintiff’s KRW 10608,0086,080.

A person shall be appointed.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 7 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Defendant’s additional collection of KRW 64,920,00 against the Plaintiff is for the following reasons (the Plaintiff does not dispute any restriction or recovery disposition).

(1) The amount of unlawful receipt, which serves as the basis for the disposition of additional collection under Article 35 of the Employment Insurance Act, refers only to the amount that the business operator received by false or other unlawful means. Since a worker subject to suspension of business actually suspended his/her business for the remainder of the period excluding the day on which he/she was traveling overseas, the amount of subsidies for retaining employees paid on the day of suspension of business should

(2) In comparison with Article 78(1) of the Enforcement Rule of the Employment Insurance Act, which provides that a business operator shall additionally collect an amount equivalent to five times the amount that he/she received on the basis of only the number of applications that he/she applied for the payment, regardless of whether the business operator actually received the subsidy, and that an amount equivalent to five times or more of the amount that he/she received shall be additionally collected on the basis of the number of applications that he/she received, “the number of times he/she received an order to restrict payment or return” as well as Article 78(1) of the Enforcement Rule of the Employment Insurance Act amended on February 9, 2010, which eases the requirements for additional collection. Thus, even if a small-scale business operator had not received or would receive the subsidy by fraud or other improper means before the instant case, the portion of the instant disposition, which collected five times the amount of subsidies granted

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) According to Article 35(2) of the former Employment Insurance Act regarding the first argument, the Minister of Labor may collect an amount not exceeding five times the amount received by fraud or other improper means in accordance with the criteria prescribed by Ordinance of the Ministry of Labor. The interpretation that the Minister of Labor may collect an amount not exceeding five times the amount received by the business operator by fraud or other improper means is consistent with the language and text of the above provision, and otherwise cannot be interpreted as including the amount additionally collected even “the amount received by the business operator by improper or other wrongful means,” not “the amount received by the business operator by improper or other wrongful means,” and it cannot be interpreted as including the additionally collected amount (see, e.g., Supreme Court Decision 2003Du964

According to Article 19(1)1 of the former Enforcement Decree of the Employment Insurance Act, since the employment maintenance support payment is calculated and paid on a monthly basis for each eligible worker, it is reasonable to view that the total amount of the monthly portion paid to each relevant worker falls under the amount of fraudulent receipt if the actual work day falls under the amount of fraudulent receipt (see Busan District Court Decision 2008Guhap434, Nov. 5, 2008).

In addition, in light of the fact that the employees subject to the suspension of business of this case are going to take a business trip regularly for a considerable period of time, and that the Plaintiff failed to actively prove that the business suspension was conducted for the remainder of the period excluding the overseas business trip period during the period of employment maintenance, the Plaintiff’s assertion that the business suspension was conducted during the period excluding the aforementioned overseas business trip period is difficult to accept.

The plaintiff's assertion in this part is without any mother or reason.

(2) According to Article 35(2) of the Employment Insurance Act before the amendment of the second assertion, where the Minister of Labor orders a person who received employment maintenance support payment to return the subsidy by fraud or other improper means, he/she may additionally collect an amount not exceeding five times the additionally received amount. We examine whether the Defendant’s additional collection of the amount five times the amount of employment maintenance support payment from April 2009 to December 209 constitutes abuse of discretionary authority.

In light of the fact that a business owner who has been inevitable to adjust his/her employment due to business fluctuations, business closure or conversion, reduction in production volume, increase in stock volume, etc., etc., a subsidy is paid to a business owner who conducts vocational skills development training necessary for the suspension of business, vocational conversion, or takes other measures for employment security of workers. Furthermore, Article 78(1) of the Enforcement Rule of the Employment Insurance Act, which applies to the case, applies to the case, provides that the amount of additional collection shall be double the amount received by fraud or other improper means, if there is no number of times requested to receive or to receive it by fraud or other improper means during the past five years before the date of detection of the illegal act, three times the amount received if the above number is one time, five times the amount received, and five times the additional collection amount shall be additionally collected from the Employment Insurance Act in Daegu, which provides five times the upper limit for additional collection in order to apply the above upper limit for the calculation of additional collection, it is reasonable to deem that the same offense has already been imposed by the existing administrative agency.

However, according to the above evidence, although the Plaintiff was not subject to sanctions, such as an order for return, on the ground that the Plaintiff received subsidies from the Defendant before the instant disposition, it is acknowledged that the number of unjust receipt of subsidies of this case due to the Plaintiff’s intentional submission of false documents reaches ten times a year. In light of the above, even considering all circumstances asserted by the Plaintiff, the Defendant’s disposition of additional collection for five times from April 2009 to December 2 of the same year by applying five times the maximum amount of additional collection collected additionally to the Plaintiff is not deemed to have abused discretion to the extent that the scope of sanctions against the offense would lose proportionality. Accordingly, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

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

The presiding judge, the highest judge;

Judges Yellow Senior Superintendent

Judges Min Jong-nam

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.