(영문) 창원지방법원 2018.4.18.선고 2017구합51691 판결

On November 1, 2016, the Defendant revoked the restriction on the payment of unemployment benefits, the order to return, and the disposition of additional collection against the Plaintiff (1).

Reasons

1. Details of the disposition;

A. From July 1, 1995 to December 31, 2015, the Plaintiff retired from office while serving in B corporation.

B. On January 18, 2016, upon applying for recognition of eligibility for employment insurance benefits to the Defendant, the Plaintiff recognized the entitlement of KRW 240,00 for the fixed benefit payment days and KRW 43,000 for the daily benefit amount. As indicated below, the Plaintiff received KRW 10,320,000 in total from the Defendant for nine times as indicated in the following table.

A person shall be appointed.

C. Upon receipt of the Plaintiff’s information that the Plaintiff is working at the macro-si Ecafeteria (hereinafter “instant workplace”) during the period of unemployment benefits, the Defendant confirmed that the Plaintiff was working in the instant workplace during the period of unemployment benefits by taking account of the relevant parties’ statements, including conducting on-site investigations, etc. on August 11, 2016.

D. Accordingly, the Defendant, from January 1, 2016 to October 13, 2016, sent a prior notice stating that “The Plaintiff,” from January 1, 2016 to October 13, 2016, was practically operating the instant workplace. However, on January 18, 2016, the Plaintiff, upon applying for recognition of eligibility for unemployment benefits, illegally received KRW 10,320,000 and additionally collected amount of KRW 10,320,000, and additionally collected amount of KRW 10,320,000, to the Plaintiff, was scheduled to order the payment of KRW 10,320,000,000, and the Plaintiff filed a prior notice stating that “The main time is U.S., 201, 200,000,0000 and KRW 30,000,000,000,000.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 3, 6, 17, and 19 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Summary of the plaintiff's assertion

The instant disposition is unlawful as it misleads the facts as follows, and there is no ground for disposition.

A. F, who is a legal spouse of the Plaintiff, operated the instant workplace from July 7, 2003 to February 22, 2016, and the Plaintiff attempted the instant workplace from January 2, 2016 to February 22, 2016, but is not employed in the instant workplace.

B. Meanwhile, around February 22, 2016, F opened a house without permission from one another, and G, which is the Plaintiff’s expulsion, operated the instant workplace from March 3, 2016 to the present day. The Plaintiff merely assisted G to operate the instant workplace in order to transfer the know-how necessary for the operation of the instant workplace.

C. The Plaintiff continued to engage in job-seeking activities 27 times from February 5, 2016 to September 12, 2016, but the Plaintiff was unable to find a job on the ground that the Plaintiff was a disabled person.

4. Whether the instant disposition is lawful

A. Relevant legal principles

According to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the Employment Insurance Act, an eligible recipient shall report to the head of an employment security office, stating the fact on the first application for unemployment recognition, after providing his/her labor during the period subject to unemployment recognition, after the date of providing his/her labor. Pursuant to Article 61(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits; pursuant to Article 61(2) of the Employment Insurance Act, an act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Employment Insurance Act constitutes “an act of receiving unemployment benefits by fraud or other improper means” under Article 62(1) of the Employment Insurance Act and Article 105(1) of the Enforcement Rule of the Employment Insurance Act. In such cases, the head of an employment security office may order the return of all or part

Meanwhile, Article 47(1) of the Employment Insurance Act, Article 69(2) of the Enforcement Decree of the same Act, and Article 92 of the Enforcement Rule of the same Act, concerning whether the provision of labor constitutes employment, where the provision of labor is set at 60 hours or more (including cases where the prescribed working hours per week are set at 15 hours or more) and the provision of labor is received at least a daily amount of job-seeking benefits regardless of the name, such as wages, etc. in return for the provision of labor, the provision of labor shall be deemed employment in cases where it is deemed difficult to ordinarily find employment in other businesses, such as where the provision of labor is engaged in commercial, agricultural, or other business, including unpaid family workers, or where the provision of labor is recognized as having been engaged in other businesses by social norms. Since the provision or purport of the provision does not require the same degree as that of employment, "the provision of labor" in accordance with Article 47(1) of the Employment Insurance Act shall be determined not only in cases where the provision of labor is legally acknowledged, but also in cases where it does not reach the degree of employment (i.).

B. Determination

In full view of the following circumstances, the Plaintiff provided labor at the instant workplace during the period subject to recognition of unemployment, and received unemployment benefits without reporting to the Defendant, based on the facts acknowledged above, as well as the entire purport of the evidence Nos. 5, 7, and 10 as well as the entire purport of the pleading. Accordingly, the Plaintiff’s aforementioned assertion on a different premise is rejected.

1) On August 19, 2016, the Plaintiff prepared and delivered a written statement to the Defendant as follows. The said written statement contains relatively specific descriptions of the role and circumstance of the Plaintiff’s workplace in this case, and there is no evidence to deem that the said written statement was drafted compulsorily against the Plaintiff’s will. Thus, the value of evidence of the said written statement cannot be readily denied.

On January 1, 2016 to February 6, 2016, F was unemployed for the period immediately before the Plaintiff retires, and therefore, F was engaged in funeral services at any time by issuing orders for the purchase of food materials and alcoholic beverages daily. From February 7, 2016 to March 2, 2016, F was the period before F enters the country and Jeju G was involved in the delivery. 4-5 days after the Plaintiff’s private work, and after the date of delivery, the Plaintiff did not know that the Plaintiff was working at the Plaintiff’s store for the main purpose of cooking practice, and that the Plaintiff was working at the Plaintiff’s 6-6-6-6-6-6-6-6-6-6-1-6-6-1-6-1-6-7-7-7-7-7-7-7-7-16-7-7-7-16-7-7-77-7-7-77-77-77-77-77-7, 2016-7-7-7.

2) On August 22, 2016, F made a call with the investigator belonging to the Defendant, and stated to the effect that “the Plaintiff, from January 1, 2016 to February 6, 2016, intended to operate the instant workplace while delivering, ice, cleaning, purchasing food materials, etc. at the instant workplace from January 1, 2016 to February 6, 2016.”

3) On October 7, 2016, H, who served as the Director of the Commercial Building Management Office in the location of the instant business site, stated to the effect that “the Plaintiff operated the instant business site within business hours with his spouse F around January 2016, the instant business site was operated from February 2016 to July 2016, and the Plaintiff and G concurrently operated the instant business site from July 2016 to October 2016.”

4) On October 7, 2016, JJ also operated a restaurant near the instant place of business, signed and delivered to the Defendant a written statement that “the Plaintiff is operating the instant place of business from January 2016 to October 2016.”

5) As such, from January 2016 to October 2016, the Plaintiff played a considerable role in the instant workplace, such as delivery, ice ice, cleaning, and purchase of food materials, and accordingly, there was a situation in which it is difficult to find regular employment in other businesses.

C. Sub-decision

Therefore, it is difficult to see that the instant disposition was erroneous, and there are grounds for such disposition. Therefore, it is lawful.

5. Conclusion

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

Judges

The presiding judge, judges and assistant judges;

Judges Park Jong-soo

Judge Cho Jong-sung

Note tin

1) The Plaintiff’s purport that “the Defendant’s suspension of payment of unemployment benefits, order for return, and disposition for additional collection against the Plaintiff on October 2017, 2017, 2, and 10” is revoked.

Although filing a lawsuit, according to the overall purport of Gap evidence 3-1 and evidence 3-2 and the entire purport of oral argument, the defendant's 's 16 November 2016 and the plaintiff's 's garment against the plaintiff.

As such, it can be seen that there is a clerical error in the contents that “the restriction on payment of unemployment benefits, the return order, and the additional collection disposition are revoked,” the correction is