(영문) 울산지방법원 2020.11.12. 선고 2020구합6017 판결

1. On February 15, 2019, the part concerning B among the disposition of the site salary for employment promotion subsidy rendered by the Defendant against the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The defendant's disposition on February 15, 2019 against the plaintiff of the job promotion subsidy shall be revoked.

Reasons

1. Details of the disposition;

A. On December 20, 2018, the Plaintiff filed an application for employment promotion subsidy with the Defendant on the ground that the Plaintiff employed a corporation engaged in the manufacture and sale of air transport equipment, and C and B (hereinafter “instant workers”). (hereinafter “instant application”).

A person shall be appointed.

B. On February 15, 2019, the Defendant issued a disposition to refuse payment on the ground of Articles 23 and 35 of the Employment Insurance Act, and Articles 26 and 56 of the Enforcement Decree of the same Act with respect to the instant application, and the ground for site payment is as follows.

Pursuant to Article 35 of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act, no subsidy for new support shall be paid within one year from the date of restriction on payment due to fraudulent acts. Article 23 of the Employment Insurance Act for the period of restriction on payment of subsidies or incentives (12-month restriction at least 10 million won on June 24, 2016) (hereinafter referred to as "reasons") and Article 26 (3) 4 of the Enforcement Decree of the same Act (excluding workers employed later than the workers eligible for the employment promotion subsidy) shall not be paid in cases where a business owner retires from employment during the period from three months before employing a person eligible for the employment promotion subsidy to one year after employment (excluding workers employed later than the workers eligible for the employment promotion subsidy) in accordance with Article 23 of the Employment Insurance Act and Article 26 (3) 4 of the Enforcement Decree of the same Act.

(C) Article 23 of the Employment Insurance Act and Article 26(3)1 of the Enforcement Decree of the same Act shall not be paid to a person who falls under any of the cases prescribed by Ordinance of the Ministry of Employment and Labor, such as where the term of a labor contract is short-term, in accordance with Article 23 of the Employment Insurance Act, Article 26(3)1 of the Enforcement Decree of the same Act, and Article 44(3)3 of the Enforcement Decree of the same Act.

C. The Plaintiff appealed and filed an administrative appeal with the Central Administrative Appeals Commission on May 9, 2019, but was dismissed on February 4, 2020.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The instant disposition shall be revoked on the grounds as follows.

1) ① On November 13, 2018, the Defendant refused payment on the grounds of the above, despite the fact that the decision was made in an administrative appeal, which was unfair.

2) As to the grounds (2) As the Plaintiff’s reduction of the salary is a disciplinary action due to the cause attributable to the employee, it does not constitute a violation of the duty to prevent reduction of salary.

3) As to the grounds (3) As to the period of special military service, the period of special military service is at least three years, and the period required for the completion of the business or the completion of the specific business is determined, and thus, it is deemed that the period of employment contract exceeds two years. Therefore, the above grounds cannot be the grounds for the disposition of site pay.

4) The Plaintiff entered into a contract to pay wages above the minimum wage amount, and paid the wages according to the hours of work.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to grounds (1)

A) Facts of recognition

(1) On July 20, 2016, the head of the Busan Regional Employment and Labor Office rendered a disposition against the Plaintiff on the illegal receipt of youth employment internship on the ground that the Plaintiff falsely submitted the application for internship and the reason for subsidies. The content of the disposition was “the termination of the agreement on support for internship, redemption of the illegal amount of support, and suspension of support (the 3,590,000 won for internship subsidies, the 7,800,000 won for regular conversion subsidies), and prohibition of new employment of internship for three years (the 24th June 24, 2016 to June 23, 2019)” (hereinafter “previous disposition”).

(2) On September 14, 2017, the Plaintiff applied for employment promotion subsidy to the Defendant on the ground that he/she employed the instant workers, and the Defendant rendered a disposition rejecting payment on November 29, 2017 for the following reasons (hereinafter “previous site pay disposition”).

In accordance with Article 35 of the Employment Insurance Act and Article 56 of the Enforcement Decree of the same Act, the subsidy for employment promotion applied by a person who has returned to a company shall be informed of the site wage. The subsidy for employment promotion shall not be newly provided within one year from the date of restriction on payment due to the illegal act.* The prohibition against the employment of an intern on June 24, 2019 (the prohibition against the employment of an intern on June 23, 2019), the period of restriction on payment of the subsidy or the subsidy: The period of restriction on payment from June 24, 2016 to June 23, 2017 (the restriction on payment of subsidy from an illegal receipt of ten million won or more).

(3) On February 27, 2018, the Plaintiff filed another application for employment promotion subsidy for the instant workers, and the Defendant rejected the said application on March 7, 2018, and the Plaintiff’s objection against the return disposition on March 15, 2018, and the Defendant responded to the purport that, on March 19, 2018, the subsidy requested by the Plaintiff is included in the period of restriction on payment, the payment is limited.

(4) On April 3, 2018 and April 12, 2018, the Plaintiff applied for employment promotion subsidy to the instant workers, and the Defendant rejected the said application on April 16, 2018 on the ground that the previous site pay disposition was already made (hereinafter “previous return disposition”).

(5) On April 23, 2018, the Plaintiff appealed and filed an administrative appeal with the Central Administrative Appeals Commission, and the Central Administrative Appeals Commission rendered a decision that the previous return disposition should be revoked on November 13, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

B) Specific determination

In full view of the evidence and the purport of the whole argument as seen earlier, the previous disposition was imposed on the Plaintiff’s illegal receipt of the subsidy under the Employment Insurance Act by the head of the creative branch of the Busan Regional Employment and Labor Office. However, the previous disposition is not included in the disposition that limits the payment of each subsidy or subsidy under the Employment Insurance Act. The previous site payment disposition is premised on the existence of the previous disposition that the previous disposition is a restriction on payment of each subsidy or subsidy. The previous site payment disposition contains the content of the "support or restriction period for the payment restriction" that did not exist in the previous disposition, and the above reasons are deemed the same as the previous site payment disposition. Accordingly, the above reasons are not deemed a legitimate disposition, as they are based on the restriction on payment of subsidy that did not exist in the previous disposition. Accordingly, the Plaintiff’s assertion is with merit.

2) As to the grounds

A) According to Article 23 of the Employment Insurance Act and Article 26(1) and Article 26(3)4 of the Enforcement Decree of the same Act, the Minister of Employment and Labor shall not pay the principal of the employment promotion subsidy to a business owner who, under Article 23 of the Employment Insurance Act, has registered job-seeking with an employment security office or any other institution prescribed by Ordinance of the Ministry of Employment and Labor to promote employment of those who have difficulty in finding employment in particular in the ordinary conditions of the labor market, such as disabled and female head, and has employed unemployed persons who completed employment promotion programs for those who have particularly difficulty in finding employment as insured under the ordinary conditions of the labor market as publicly notified by the Minister of Employment and Labor. If a business owner retires from employment of workers (excluding workers employed later than those eligible for the employment promotion subsidy) through employment adjustment during three

However, the purport of the above provision, etc. is to ensure that a business owner who retired from employment through employment adjustment for the stabilization of employment does not pay the employment promotion subsidy if he/she employs a new worker, and it is difficult to deem that the business owner who retired from employment due to disciplinary action due to a cause attributable to the worker, such as unauthorized absence, does not pay the employment promotion subsidy even if he/she employs a new worker. Therefore, it is reasonable to deem that the above "employment adjustment" does not include disciplinary action

B) Considering the overall purport of the statements and arguments as to the plaintiff's application of this case, the defendant, around December 26, 2018, requested the plaintiff to submit documents confirming the reason for retirement D and E through employment adjustment during the period from three months before employing the worker of this case to 12 months after employing the worker of this case. The plaintiff applied for the correction of the details of the insured, and submitted a written statement stating that the above reasons for retirement of the two persons were dismissed due to the absence of employment loss D and E, and the above reasons for retirement were dismissed. Nevertheless, the defendant can be acknowledged that the defendant dismissed the worker due to poor work performance as well as the reasons for dismissal of workers due to employment adjustment. Thus, the plaintiff's assertion that the above reasons are not legitimate grounds for dismissal even if the employer employs new workers due to employment adjustment.

3) As to the grounds

A) According to Article 23 of the Employment Insurance Act, Article 26(1) and (3)1 of the Enforcement Decree of the same Act, and Article 44(3)1 of the Enforcement Rule of the same Act, the Minister of Employment and Labor shall not grant employment promotion subsidies to employers who employ unemployed persons as insured workers who have completed employment support programs for those whose employment is particularly difficult under the ordinary conditions of the labor market, such as disabled persons, female head, etc. under Article 23 of the Employment Insurance Act, and who have registered with the employment security office or any other institution prescribed by Ordinance of the Ministry of Employment and Labor to promote employment of those whose employment is particularly difficult under the ordinary conditions of the labor market, as publicly notified by the Minister of Employment and Labor.

B) In full view of the purport of the entry into evidence No. 1 and the entire argument, it is reasonable to deem that the Plaintiff is not entitled to the employment promotion subsidy for the above C, since the Plaintiff, among the instant workers, has employed the instant worker C for a fixed period of employment contract until the expiration date of the special military service. Accordingly, the Plaintiff asserted that the employment promotion subsidy should be paid in accordance with Article 44(3)1(a) of the Enforcement Rule of the Employment Insurance Act since the employment contract with C is determined as the period necessary for the completion of the business or the completion of a specific job exceeds two years, and the period of the employment contract exceeds two years. However, there is no evidence to support that the above employment contract constitutes “where the period required for the completion of business or the completion

C) Therefore, the above reasons are deemed legitimate grounds for the job promotion subsidy for C. Therefore, this part of the Plaintiff’s assertion is without merit.

4) As to the grounds

A) According to Article 23 of the Employment Insurance Act, Article 26(1) and (3)1 of the Enforcement Decree of the same Act, and Article 44(3)3 of the Enforcement Rule of the same Act, the Minister of Employment and Labor shall not grant employment promotion subsidies to employers who employ unemployed persons as insured workers, who have completed employment support programs for those whose employment is particularly difficult under the ordinary conditions of the labor market, such as disabled persons, female head, etc. under Article 23 of the Employment Insurance Act, and whose employment is registered with the employment security office or any other institution prescribed by Ordinance of the Ministry of Employment and Labor to promote employment of those who have completed employment in the labor market, as publicly notified by the Minister of Employment and Labor, as prescribed by the Minister of Employment and Labor. If employers employ workers whose amount of wages is less

B) Comprehensively taking account of the overall purport of the statements and arguments in the evidence Nos. 1 and 2, it can be acknowledged that the instant worker entered into an employment contract with the Plaintiff to receive wages above the minimum wage amount under the Minimum Wage Act. The evidence submitted by the Defendant alone is insufficient to acknowledge that the Plaintiff paid the instant worker wages below the minimum wage amount under the Minimum Wage Act and employed the instant worker, and there is no other evidence to find otherwise (it is not proven that the amount actually paid by the Plaintiff is below the minimum wage amount under the Minimum Wage Act, and even if the Plaintiff paid money below the minimum wage amount, there is no evidence to prove that the Plaintiff would pay wages below the minimum wage amount under the Minimum Wage Act, and that the Plaintiff hired the instant worker). Accordingly, the above ground is not a legitimate reason for disposition. Accordingly, the Plaintiff’s assertion pointing this out has merit.

5) Sub-decisions

Therefore, the part concerning C among the disposition of this case exists as legitimate grounds for disposition, but the part concerning B should be revoked as illegal because there is no ground for disposition.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of the above recognition scope, and the remaining claims are without merit, and it is dismissed. It is so decided as per Disposition.