(영문) 서울행정법원 2013.8.27. 선고 2013구합8745 판결

A. On December 4, 2010, the Plaintiff retired from Company B, and applied for recognition of eligibility for employment insurance benefits to the Defendant on December 24, 2010, the Plaintiff recognized eligibility for job-seeking benefits of KRW 240 days for the fixed benefit payment days, KRW 40,000 for the job-seeking benefits, and KRW 4.2 million for job-seeking benefits of KRW 5 days for five times during the period from April 7, 201 to July 29 of the same year.

B. On September 20, 2010, the Seoul Central District Court commenced rehabilitation proceedings with C (hereinafter “instant rehabilitation company”) and authorized the rehabilitation plan of the instant rehabilitation company on June 17, 201. On July 4, 201, the above court appointed the Plaintiff as the auditor of the instant rehabilitation company on July 6, 2012, with the term of office up to 24 million won as of July 6, 201. Accordingly, the Plaintiff concluded the above employment contract with the custodian of the instant rehabilitation company, and received benefits of KRW 20 million each month from the instant rehabilitation company. The Plaintiff acquired eligibility for benefits at the place of business on April 7, 201, and reported re-employment to the Defendant on July 14, 201, and the Defendant did not accept the Plaintiff’s claim for early re-employment under Article 201(1)6 of the Employment Insurance Act (see, e.g., Supreme Court Decision 200 million won.).

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 9, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff’s appointment as auditor of the instant rehabilitation company during the benefit period for six months or longer constitutes “re-employment in a stable occupation” under Article 64(1) of the Employment Insurance Act, the Defendant is obligated to pay early re-employment allowances to the Plaintiff. Therefore, the instant disposition made on a different premise is unlawful.

B. Relevant statutes

▣ 고용보험법 제64조(조기재취업수당)

(1) Early re-employment allowances shall be paid to an eligible recipient (excluding foreign workers defined in Article 2 of the Act on the Employment, etc. of Foreign Workers) who re-employed in a stable occupation or self-employed business for profit meeting the standards prescribed by Presidential Decree.

(2) Notwithstanding paragraph (1), early re-employment allowances shall not be payable to an eligible recipient who had received early re-employment allowances in a period prescribed by Presidential Decree before the date of reemployment in a stable occupation or commencing one's own for-profit business.

(3) The amount of early re-employment allowance shall be calculated at the rate of the unpaid number of days of job-seeking benefits as determined by Presidential Decree.

(4) In applying the provisions of this Act (excluding Articles 61 and 62) to a recipient of early re-employment allowances, job-seeking benefits equivalent to the number of days computed by dividing the amount of early re-employment allowances by the outlined day of the previous class under Article 46 shall be considered to have been paid

Article 84 of the Enforcement Decree of the Employment Insurance Act (Standards for Payment of Early Re-employment Allowances)

(1) "Standards prescribed by Presidential Decree" in Article 64 (1) of the Act means any of the following cases where an eligible beneficiary is re-employed after having left the fixed benefit payment days under Article 50 of the Act for at least 30 days on the basis of the day immediately preceding the date of re-employment after the waiting period under Article 49 of the Act:

(a) Where an eligible recipient is employed by the business owner who has retired last and is related to such business owner as prescribed by Ordinance of the Ministry of Employment and Labor or by the business owner who has promised to employ him/her before the reporting date of unemployment under Article 4

(b) Where he/she is employed in a short-term job offer program for not more than one year, implemented by the State or a local government in accordance with welfare policies, unemployment measures,

2. Where he/she has operated his/her business continuously for at least six months, limited to cases where an eligible recipient has reported his/her preparatory activities to run the relevant business as a re-employment activity during the relevant benefit period under Article 44 (2) of the Act and recognized as unemployed;

(1) An eligible recipient who intends to receive early re-employment allowances under Article 64 of the Act shall submit a written claim for early re-employment allowances to the head of the competent employment security office for the place of application along

(2) Pursuant to Article 64 (1) of the Act, a written claim for early re-employment allowance under paragraph (1) shall be submitted six months after the date on which he/she started his/her own business for profit.

(3) Article 75 shall apply mutatis mutandis to the procedures for paying early re-employment allowances.

Article 109 of the Enforcement Rule of the Employment Insurance Act (Claim for Early Re-employment Allowances)

(1) A written request for early re-employment allowance under Article 86 (1) of the Decree shall be in accordance with attached Form 97.

(2) "Documents prescribed by Ordinance of the Ministry of Employment and Labor" in Article 86 (1) of the Decree means a beneficiary certificate and any of the following documents:

1. A labor contract (limited to cases where it is employed in a business); 2. Documents proving that the business is actually conducted, such as a prospectus, an office lease contract, or data verifying taxation (limited to cases where the business is conducted);

C. Determination

1) Article 64(1) of the Employment Insurance Act provides that "the early re-employment allowance shall be paid to an eligible recipient who re-employments in a stable occupation or engages in a for-profit business, if the eligible recipient satisfies the criteria prescribed by Presidential Decree." Article 84(1)1 of the Enforcement Decree of the same Act provides that "the standard prescribed by Presidential Decree is that an eligible recipient remains at least 30 days after the waiting period under Article 49 of the Act and is re-employed for at least six consecutive months as of the day immediately before the date of re-employment."

2) Based on the above contents, form, and purpose of the relevant statutes, the following circumstances revealed by adding the aforementioned recognition and the entire purport of the evidence presented earlier, namely, early re-employment allowance, regardless of whether an eligible recipient is re-employment or self-employed, and thereby making income through stable re-employment of job-seeking benefits, is aimed at minimizing the period of unemployment and promoting stable reemployment by paying a certain amount of money equivalent to the unpaid part of job-seeking benefits before receiving job-seeking benefits (see, e.g., Supreme Court Decision 2009Du19892, Dec. 8, 201). 2, it is reasonable to view that the auditor of the company as a person who audits the performance of duties of the director and investigates the company’s property status as the premise for delegation of the Civil Act (Article 412 of the Commercial Act). Inasmuch as the auditor of the company seeking rehabilitation (Article 415 and Article 382(2) of the Commercial Act is limited to the Plaintiff’s employment company’s employment contract appointment for at least 6 months, it can be deemed as unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.