(영문) 부산고등법원 2012.8.22. 선고 2012누201 판결

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of site salary for replacement of human resources against the plaintiff on July 12, 2010 and the disposition of site salary against the plaintiff.

Reasons

1. Quotation of judgment of the first instance;

The reason why the court should explain this case is as follows: (a) the attached law of the court of first instance is as follows; (b) the attached law of the court of first instance is as follows; and (c) the attached law of the court of first instance is as follows; and (c) the part of the attached law of the court of first instance from 3 to 6 (c) is as stated in paragraph (2); and (c) it is identical to the part of the reasoning of the judgment of the court of first instance except for adding the judgment as set forth in paragraph (3) below. Thus,

2. Parts to be dried;

C. Determination

1) First of all, we examine whether the facilities invested in a new business are not fixed facilities and equipment, but merely office fixtures or expendable equipment, and do not constitute the installation or maintenance of facilities and equipment necessary to convert the business into a new business type, and thus is excluded from the scope of employment subsidy support.

Article 21 (1) of the former Employment Insurance Act (amended by Act No. 1037 of May 31, 2010) provides that "the Minister of Labor may provide necessary support to a business owner, as prescribed by Presidential Decree, when the business owner who has become inevitable to adjust the scale of his/her employment due to the reduction of the scale of his/her business, the closure or conversion of his/her business due to the business, the change in industrial structure, etc., of the scale of his/her business, or the change in the industrial structure, conducts vocational ability development training, replacement of human resources, etc. necessary for the suspension of business, occupational change, or takes other measures for employment security of workers." Article 19 (1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22269 of July 12,

A business owner whose adjustment in employment has been inevitable shall be recommended by the insured employed in the business (daily workers, persons notified of dismissal under Article 26 of the Labor Standards Act, and business owners on the managerial reasons.

Employment maintenance support payment shall be granted in cases where a person who is expected to retire does not resign from the insured through an employment adjustment during the period of the measure taken against him/her. The purpose of employment maintenance support payment is not only to reduce the number of employees employed in a company due to the occurrence of surplus labor force in the company, such as business reduction, management rationalization, change in production methods, reorganization, etc., but also to prevent the actual employment of workers by reducing the business burden (see Supreme Court Decision 2005Du723, Sept. 29, 2005).

2) In order to receive such subsidies for maintaining employment, ① an adjustment in employment should be inevitable due to the occurrence of surplus labor force in a company, and ② an employer must take measures for maintaining employment in order for the employer to continue to maintain employment of workers.

(1) Article 24 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 12, Jul. 12, 2010); 1. Where the average monthly turnover of a business which has been reduced by at least 50 percent (10 percent in cases where the average monthly turnover of a business has been reduced by at least 10 percent in the month immediately preceding the month in which the date a plan for supporting employment was submitted (hereinafter referred to as “base month”) or where the average quarterly turnover of a business has been reduced by at least 10 percent in the month immediately preceding the month in which the date a plan for supporting employment was submitted, or where the average monthly turnover of a business has been reduced by at least 10 percent in the month immediately preceding the month in which the average monthly turnover of the business was reduced by at least 10 percent in the month immediately preceding the month in which the average monthly turnover of the previous business was reduced by at least 20 percent in the month immediately preceding the month in which the average monthly turnover of the business was reduced by at least 10 percent in the month immediately preceding month in the month.

Next, Article 19 of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 2269, Jul. 12, 2010) provides that "1. 1. (hereinafter referred to as "unit period" in this Article) where the ratio of the number of days of suspension of business to the number of annual fixed working days of an insured worker exceeds 20/100, and the business suspension allowance is paid for the period of suspension of business, as prescribed by Ordinance of the Ministry of Employment and Labor; 2. Where the business suspension allowance is paid for the period of suspension of business, as prescribed by Ordinance of the Ministry of Employment and Labor, the suspension of business is granted for more than 3.1 months; 4. Where the business is installed or maintained to convert the business from the small classification on the Korean Standard Industrial Classification Table to a new type of business belonging to another category of small classification, and the insured's plan for maintenance of employment under Article 20 (2) relocates at least 50/100 of the insured worker to a new business."

3) As seen earlier, the Plaintiff applied for employment maintenance support payment due to the reasons stipulated in Article 19(1)4 of the former Enforcement Decree of the Employment Insurance Act. In view of the purpose and purport of the employment maintenance support payment system as above, and the measures taken by the business owner whose employment adjustment is inevitable, the Plaintiff should install or maintain facilities or equipment necessary to substantially carry out new projects instead of the facilities or equipment of the business reduced or discontinued due to the aggravation of management.

4) In light of the above legal principles, the following facts can be acknowledged in light of the following facts in light of Gap evidence Nos. 10, 11, 3, 8, 10, and 11 as to the instant case’s health class, the aforementioned evidence, and the purport of Gap evidence No. 3, 8, 10, and 11 as a witness

A) The trade name of the Plaintiff’s business prior to the conversion of the type of business is “C”, and the location of the business is “four floors of building D.,” and the trade name of the type of business is “C Busan Branch,” and the location of the business is “C. 3 floor F of building E., Busan E., and the type of business is “biochemical, chemical properties and wholesale retail,” and the prior meaning of the E.S. educational body is used for physical, chemical properties and analysis, and this chemical body is the same as the measurement instrument, which is the original product subject to the business, and its items are the same.

B) The Plaintiff, even at the time of filing a plan report or application for subsidies following the replacement of human resources in its assertion, had all the previous four employees work in the trigram law office, the location of the previous business place, and continue to engage in measurement measuring instrument inspection services, which had been previously engaged in the business prior to the conversion of the type of business. As seen earlier, the Plaintiff separately prepared the Maradong office, which was reported to the new business place, and had all the previous employees engage in the business of selling measurement instrument, but the main revenue source still was the business prior to the conversion of the type of business.

C) The office prepared by the Plaintiff for a new business is the Plaintiff’s partner, who is the actual manager of the original business and new business (H: H) provided the new business office with the fact that the G (around May 2009 for the automobile parts-related business, which had been leased for the said business, was unfortunateed for several months due to the waiver of the said business, and there is no other facilities or equipment newly invested for a new business other than the books, fields, sponss, sponss, setss, setss, computers, telephones, etc. installed in the office.

5) In light of the following circumstances, comprehensively considering the evidence revealed prior to the above facts, it cannot be deemed that the Plaintiff’s offering of the above office, equipment, and fixtures constitutes the installation or maintenance of facilities or equipment necessary for business conversion to a new type of business.

(1) The Plaintiff shall install or maintain a new necessary facility or equipment to perform a new business instead of the facility or equipment of a business reduced or discontinued due to the aggravation of management. The Plaintiff continued to operate the business prior to the conversion of the type of business even at the time of applying for the report on the completion of employment maintenance measures in this case and the payment of employment maintenance support payment, and the principal hospital is also a business prior to the conversion of the type of business, and cannot be deemed to have reduced or discontinued

② The Plaintiff’s business prior to the conversion of the type of business and the business conversion project are limited to the name of business reported, and do not seem to have been practically converted to a new type of business in light of the trade name, location, form and content of work

③ The office, office, and fixtures installed by the Plaintiff are only able to be used for another business at any time, and the above facilities and equipment, other than the previous facilities and equipment, are not required to conduct the business for the business for the business for the business for the conversion of the type of business, in light of the content of the business for the business for the conversion of the type of business. 6) Therefore, the Plaintiff’s application for employment maintenance of the instant case was made without any employment maintenance measure for the installation or maintenance of facilities and equipment necessary to convert the business into a new type of business, and thus, the disposition that the Plaintiff refused payment is legitimate. Thus, the Plaintiff’s prior report on the plan for employment maintenance of the instant case is not required to be considered,

3. Matters to be judged additionally;

A. The plaintiff's assertion

The Defendant expressed a public opinion to the effect that the Plaintiff would provide the instant employment maintenance support payment to the Plaintiff through the administrative guidance of I, who is a staff member, and since the Plaintiff believed this and maintained four employees, and invested in a facility for new businesses, such as an office and office, etc., the instant value portion goes against the principle of trust protection.

(b) judgment;

1) In administrative legal relations, in order to apply the principle of the protection of trust to the act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual as to the trust of the individual, third, the individual should have trusted the opinion list and have engaged in any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the above opinion list against the above opinion list, thereby infringing the individual's interest. Lastly, when taking an administrative disposition in accordance with the above opinion list, it shall not be likely to seriously undermine the public interest or legitimate interest of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006). In determining whether there was a public opinion list of an administrative agency's public opinion list, the decision should be made in light of the organization and duties of the person in charge, specific circumstances leading to the relevant speech and behavior, and the other party's trust possibility thereof (see Supreme Court Decision 2006Du4664, Apr. 26, 2006).

2) In light of the above legal principles, it is difficult to recognize this case only by testimony of the witness B and witness G of the first instance court as to whether the defendant first expressed a public opinion to the plaintiff, and since there is no other evidence to acknowledge this, the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.