(영문) 대구지방법원 2015.1.28. 선고 2014구합21709 판결

1. On March 21, 2014, the Defendant’s disposition of ordering the Plaintiff to return unemployment benefits amounting to KRW 950,550,000, in excess of KRW 176,020, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

On March 21, 2014, the Defendant revoked restrictions on the payment of unemployment benefits and orders for return to the Plaintiff.

Reasons

1. Details of the disposition;

A. On November 1, 2013, the Plaintiff filed an application for eligibility for unemployment benefits with the Defendant and received the total amount of KRW 2,710,850 for the following four occasions. The Plaintiff reported to the Defendant that he/she worked for 11 days during the period subject to the verification of unemployment by No. 3 of January 10, 2014, and 4 days during the period subject to the verification of unemployment by No. 4 of February 7, 2014.

A person shall be appointed.

B. On January 24, 2014 and February 21, 2014, the Defendant received a report that the Plaintiff had worked for 14 days during the period subject to the verification of unemployment 3, and 6 days during the period subject to the verification of unemployment 4, e.g., the Plaintiff reported to the representative of B that the Plaintiff had worked for 15 days in total by omitting the fact that the Plaintiff had worked for 20 days in total on December 23, 2013 to January 16, 2014.

D. On March 21, 2014, pursuant to Articles 61 and 62 of the Employment Insurance Act and Article 104 of the Enforcement Rule of the same Act, the Defendant issued to the Plaintiff an order to return the unemployment benefits amounting to KRW 950,550 (i.e., the number of illegal receipt days of violation once + KRW 105,610 per day, 3.00 + the total amount of the unemployment benefits during the pertinent period of violation at KRW 84,940) and a disposition to restrict payment (hereinafter referred to as “instant order to return or restrict payment,” and hereinafter referred to as “each of the instant dispositions”).

E. The Plaintiff dissatisfied with the request for review on March 31, 2014, but the employment insurance examiner decided to dismiss the request on May 26, 2014.

【Facts without dispute over the basis of recognition, Gap evidence 1-2-1, Eul evidence 2-2-1, 11, and 13-2, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

1) The plaintiff's assertion

A) After hearing the horses of the people around a holiday, the Plaintiff reported to the Defendant the total number of working days excluding the number of working days on a holiday with the knowledge that the details of the work on a holiday were not reported, and at the time, the employee in charge received the above report without demanding the Plaintiff to withhold or return the Plaintiff’s report and lawfully correct it. Nevertheless, the Defendant’s failure to perform its duty to prevent unjust supply and demand by the administrative agency is unlawful.

B) According to Article 62(1) of the Employment Insurance Act, a disposition to issue an order to return unemployment benefits is a discretionary act, not a binding act. Article 104 of the Enforcement Rule of the same Act is merely a discretionary act, and Article 104 of the same Act provides that job-seeking benefits shall not be delegated by the superior law. Even if job-seeking benefits are recovered by 4th of the unemployment benefits, the purpose of the order to return unemployment benefits can be achieved. The number of working days omitted by the Plaintiff is more than 5 days, and all holidays days, and the Defendant is confused

In light of the fact that there was room for room, and the Plaintiff had been committed a violation of the law only once because it had been omitted for five days during the consecutive unemployment period, and that the degree of violation of the law cannot be considered to be more severe than the case where five days were omitted during the one-time unemployment period, the instant return order is illegal as it violates the principle of proportionality and the principle of equality, and is in violation of the discretionary power.

2) The defendant's assertion

Job-seeking benefits are paid for each day including holidays during the period subject to unemployment recognition by reporting unemployment as to whether they are unemployed, and the beneficiary reports the details of work during the period subject to unemployment recognition pursuant to Article 47(1) of the Employment Insurance Act. The defendant provided sufficient information to applicants for unemployment benefits in the employment assistance briefing session, and in the case of daily workers, the daily worker requires the worker to indicate "0" on the relevant day of the month in which the total number of days is written. Thus, the plaintiff was aware of the fact that the job-seeking benefits should also be reported. Even if not, the decision that the plaintiff's holiday work at the time of application for unemployment recognition is not included in the holiday work is nothing more than legal errors or lots, and the defendant did not grant the plaintiff trust because the plaintiff did not say that the plaintiff's application for job-seeking benefits was lawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

Article 61(1) of the Employment Insurance Act provides that a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date on which he/she received, or attempted to receive, such unemployment benefits. Article 62(1) provides that the head of an employment security office may order a person who has received, by fraud or other improper means, job-seeking benefits to return all or part of the total amount of job-seeking benefits that he/she received. Here, “any false or other unlawful means” refers to any unlawful act committed by a person who is generally ineligible for benefits by pretending eligibility for benefits, or concealing employment facts, income generated, etc. (see, e.g., Supreme Court Decision 2002Du

In this case, the Plaintiff reported that the Plaintiff worked for 14 days during the period subject to the recognition of unemployment on January 10, 2014 (from December 14, 2013 to January 10, 2014), and 11 days during which the Plaintiff worked for 6 days during the period subject to the recognition of unemployment (from January 11, 2014 to February 7, 2014), and received job-seeking benefits by reporting 4 days to work for 6 days during the period subject to the recognition of unemployment (from January 11, 2014 to February 7, 2014), and there is no dispute between the parties concerned, taking full account of the overall purport of the arguments in subparagraphs 9 and 10 of the evidence, the Plaintiff wishes to recognize that the Plaintiff received the overall education on the unemployment benefits system from the Defendant at the time of applying for the recognition of unemployment, and received the employment card to be issued in relation to the obligation to report employment under Article 47 (1) of the Enforcement Decree of the same Act.

According to the above facts, it is reasonable to view that the Plaintiff received job-seeking benefits by false or other unlawful means as stipulated in Article 62(1) of the Employment Insurance Act, since the Plaintiff received education on the unemployment benefits system, including holiday work days, which requires the Defendant to report the details of labor during the unemployment recognition period, while reporting the period subject to unemployment recognition, and received the job-seeking benefits without stating the actual working days or without properly stating the fact that the Plaintiff received the Plaintiff’s report on the details of labor. Therefore, the Plaintiff’s above assertion is without merit.

2) Judgment on the second argument

Article 62 (1) of the Employment Insurance Act provides that the head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means to fully or partially refund all or part of job-seeking benefits, and Article 104 of the Enforcement Rule of the same Act provides that an employment security office shall order a person who has received job-seeking benefits by fraud or other improper means to return all or part of job-seeking benefits in accordance with the following guidelines pursuant to Article 62 (1) of the Act (Article 62 (1) of the Act) and, notwithstanding subparagraph 1 and subparagraph 1 of Article 80 of the Decree, a person who falls under subparagraph 1 of Article 80 of the Decree to return only job-seeking benefits for the unemployment period recognized as such (Article 2), notwithstanding the main sentence of subparagraph 2 and the proviso to subparagraph 2, if the person files a voluntary report on such unlawful act before the head of an employment security office investigates the person or place of business, the head of the employment security office shall order only the job-seeking benefits paid for the period during which he/she provided labor during the period:

In light of the following circumstances, i.e., the upper limit of return of job-seeking benefits prescribed by the Enforcement Rule of the Employment Insurance Act does not exceed the upper limit of the job-seeking benefits under the Act, and specifically allowing the return of job-seeking benefits in certain circumstances, the provision of the above Enforcement Rule cannot be deemed as a provision beyond the delegation scope of the mother Act (see Supreme Court Decision 201Du21034, Dec. 8, 201); 2, the Plaintiff provided the Defendant with 14 days during the period subject to the unemployment recognition (from December 14, 2013 to January 10, 2014); 10 days during the period subject to the unemployment recognition (from January 10, 2014; 20 days during the period subject to the unemployment recognition; 30 days during which the Plaintiff reported and provided 10 days during the period subject to the unemployment recognition (from January 14, 2014 to February 7, 2014).

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.