(영문) 서울행정법원 2014.2.6. 선고 2013구합16241 판결

A. On August 9, 2011, an attorney-at-law of the B law office (hereinafter “instant law office”) reported to the head of Seoul Regional Employment and Labor Office on August 9, 201 that “the Plaintiff acquired insured status as an employee of the instant law office on August 3, 2009 and retired from employment on August 9, 201.”

B. On August 24, 2011, on the ground of severance from employment as of August 9, 2011, the Plaintiff obtained an application for recognition of eligibility for employment insurance against the Defendant for payment of KRW 150 days for the fixed benefit payment day, KRW 32,608, and received four times from August 31, 2011 to November 30, 201, job-seeking benefits amounting to KRW 2,99,980 for 92 days.

C. On September 16, 2011, C submitted to the Seocho Employment Insurance Center “The Plaintiff was not working for the purpose of wages, and the Plaintiff did not have a subordinate relationship with the employer, thereby making a false report on the fourth insurance at the Plaintiff’s request.”

D. On January 27, 2012, the Seoul Regional Labor Relations Council issued a notice of the findings of the investigation on the certificate of self-declaration of false insurance reporting to the Plaintiff, stating that “as a result of the investigation conducted by the representative of the pertinent law office upon the Plaintiff’s request for cancellation of the insured status, the Plaintiff shall not be deemed an employee under the Labor Standards Act” (hereinafter “instant notice”).

E. On April 19, 2012, the Plaintiff filed a request with an employment insurance examiner to request that “the head of Seoul Regional Employment and Labor Agency revoke the cancellation of the acquisition of insured status by the Plaintiff on January 27, 2012,” and the employment insurance examiner dismissed the Plaintiff’s title on November 9, 2012.

F. On February 7, 2013, the Plaintiff filed a request for reexamination with the Employment Insurance Review Committee on the purport that “the notification of findings of finding that the head of Seoul Regional Labor Agency cannot be deemed an employee under the Labor Standards Act that was made on January 27, 2012 is revoked.” On March 11, 2013, the Employment Insurance Review Committee rejected the Plaintiff’s request on the grounds that “the notification of this case is merely a notification of the internal decision by the head of the Seoul Regional Employment and Labor Agency on whether the Plaintiff is an employee.” Moreover, it cannot be deemed as a confirmation or disposition under Article 87(1) of the Employment Insurance Act, since the Plaintiff’s legal status under the Employment Insurance Act and the so-called insured status or the right to receive unemployment benefits are not directly and legally changed. Furthermore, it is not confirmed that the Plaintiff separately rendered a return disposition on job-seeking benefits that was paid to the Plaintiff for the loss of insured status.” The Plaintiff’s request for reexamination is unlawful in spite of the confirmation or disposition under

G. On May 20, 2013, the Defendant issued a disposition to impose additional collection of KRW 2,99,980, based on Articles 61 and 62 of the Employment Insurance Act on the ground that “the Plaintiff reported the acquisition or loss of the insured status and received unemployment benefits” (hereinafter collectively referred to as “instant disposition, including restriction on payment of job-seeking benefits, order to return job-seeking benefits, and additional collection”).

H. On December 27, 2012, the Plaintiff filed a lawsuit against the head of Seoul Regional Employment and Labor Office seeking the revocation of the instant notification by stating the date on which the date was stated in this Court as the date on December 27, 2012, but corrected the date on July 11, 2013 as the date on January 27, 2012.

I. On July 19, 2013, the Plaintiff filed an application for amendment to the purport of the claim amended to this court on November 201, 2013, stating that “the Defendant submitted to the Plaintiff an application for amendment stating that “the suspension of payment and return of unemployment benefits made by the Seoul Regional Employment and Labor Agency Seoul Regional Employment and Labor Office on July 19, 2013 is revoked.” On November 14, 2013, the Plaintiff corrected “ July 19, 2013” as “ May 20, 2013.”

(j) On December 12, 2013, the Plaintiff submitted an application to correct the Defendant to this court. On December 13, 2013, this Court rendered a decision to correct the Defendant’s correction to the head of the Seoul Regional Employment and Labor Office.

[Ground of recognition] Facts without dispute, Gap evidence 8, Eul evidence 1 to 4, 12 to 14, the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. Main Safety Defenses

On July 9, 2013, the Plaintiff refused to receive the notice, etc. according to the instant disposition while making a telephone call with the Defendant, and became aware of the instant disposition at that time, and the Defendant served the notice on July 19, 2013 and served the notice on August 3, 2013.

The Plaintiff sought revocation of the initial notification of this case on November 11, 2013, and amended the purport of the instant claim to seek revocation of the instant disposition. The same is not recognized between the claim for revocation of the instant notification and the claim for revocation of the instant disposition, and even if the modification of the purport of the claim is permitted, it has passed 90 days from July 9, 2013 or August 3, 2013, which is the date when the Plaintiff became aware of the instant disposition, or from August 3, 2013, which is the effective date of service by publication. Accordingly, the instant lawsuit is unlawful.

B. Determination

(1) The notice of this case is not an employee of the legal office of this case, and the reason for the disposition of this case is false that the plaintiff reported the loss of insured status to the employee of the legal office of this case. Thus, the plaintiff sought revocation of the disposition of this case from the cancellation of the notice of this case, and it cannot be said that the ground for the disposition of this case is changed even

(2) The "date when the party becomes aware of a disposition, which is the starting point of the filing period of a lawsuit under Article 20 (1) of the Administrative Litigation Act, refers to the date when the party becomes aware of the fact that the relevant disposition was taken by notice, public notice, or any other means. In case where the party is unable to serve an administrative disposition against a specific person on the bulletin board of the official gazette because it is impossible to serve it on the bulletin board of the official gazette, etc., the other party cannot be deemed to have known of the administrative disposition on the date when the notice takes effect, and the other party has been aware of the relevant disposition on the date when he became aware of the fact (see Supreme Court Decision 2005Du148

According to each statement of evidence Nos. 11 and 16, the defendant's employee confirmed the plaintiff's address to deliver a written disposal by telephone to the plaintiff on July 9, 2013, and the defendant may recognize the fact that on July 19, 2013, the defendant publicly announced the payment notice of KRW 5,99,960 to the plaintiff on the Internet bulletin board of the defendant's Internet homepage operated by the defendant. However, such fact alone cannot be deemed to have actually known that the plaintiff was subject to the instant disposition, and there is no other evidence to acknowledge it. Accordingly, the defendant's main defense against the defendant has expired as of the time of amendment of the plaintiff's claim.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

As the Plaintiff worked as an employee at the law office of this case, the instant disposition was unlawful on a different premise.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Although the Employment Insurance Act does not provide for the definition of an employee under Article 2(1)1 of the Labor Standards Act, in light of the purpose of the Employment Insurance Act and the type of unemployment benefits, it is reasonable to deem that an employee under the Employment Insurance Act refers to an employee under the Labor Standards Act (see Supreme Court Decision 98Du2003, Apr. 24, 1998).

In addition, the determination of whether a worker is a worker under the Labor Standards Act, regardless of whether the form of the contract is an employment contract under the Civil Act or a contract for work, shall be made based on whether the worker provides labor in a subordinate relationship with the employer for the purpose of wages at the business or workplace. Determination of whether such a subordinate relationship exists should be made by comprehensively taking into account the following factors: (a) the content of the work is determined by the employer; (b) whether the employer is subject to specific direction and supervision; (c) whether the working hours and place are designated by the employer; (d) whether the worker is placed in a workplace and is detained by the employer; (e) whether the worker has a substitutive nature of the work, (e) ownership of equipment, raw materials, working tools, etc.; (e) whether the characteristic of remuneration is a target for the work itself; (e) whether there is a basic wage or fixed wage; (e) whether the continuous provision of labor relations and the exclusive nature and degree of the employer; (e) whether the worker status is recognized by other statutes regarding social security systems; and (e) social and economic conditions of both parties

(2) According to each of the evidence Nos. 1 and 4, the Plaintiff reported as an employment provided policyholder under the National Health Insurance Act from Aug. 3, 2009 to Aug. 10, 201; C, as to earned income of 10,600,000 won for the Plaintiff’s earned income of 10,074 won; and 272,309,000 won for earned income of 24,000,000 won for 20,000 won, respectively, at the tax office; according to each of the above evidence Nos. 7,11,12 (including evidence No. 11), it is difficult to find out the Plaintiff’s free legal counseling or legal counseling services at the law office of this case; and it is difficult to find that the Plaintiff paid 100,000 won for 20,000 won for 20,000 won or more for 30,000,000 won for the Plaintiff’s answer to e-mail.

(3) Therefore, the Plaintiff’s assertion is without merit, and the instant disposition is lawful.

4. Conclusion

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