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(영문) 서울고등법원 2016. 5. 26. 선고 2015누51080 판결
[구직급여과오급금반환처분취소][미간행]
Plaintiff, Appellant

Plaintiff (Korean Legal Aid Corporation’s public-service advocate)

Defendant, appellant and appellant

The President of the Central Local Labor Agency

Conclusion of Pleadings

April 7, 2016

The first instance judgment

Incheon District Court Decision 2015Guhap121 Decided June 25, 2015

Text

1. The part against the defendant in excess of the following part among the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

On April 3, 2014, the Defendant’s disposition of return amounting to KRW 1,415,583 of the disposition of return of overpaid job-seeking benefits rendered to the Plaintiff shall be revoked.

2. The defendant's remaining appeal is dismissed.

3. The total cost of the lawsuit shall be one hundred equal to that of the plaintiff, and the remainder shall be borne by the defendant respectively.

Purport of claim and appeal

1. Purport of claim

The Defendant’s disposition of returning KRW 1,469,640 to the Plaintiff on April 3, 2014 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant company is operated as the taxi commission scheme that pays part of the transport earnings to the company. As such, the average wage, which serves as the basis for calculating the daily amount of job-seeking benefits, includes transport earnings exceeding the taxi commission, and the basic working hours per day are five hours in a labor contract made between the Plaintiff and the instant company. However, considering the Plaintiff’s form of work and the amount of taxi commission, the basic working hours stated in the labor contract are merely the only formality. Therefore, the instant disposition is unlawful as it erred by misapprehending the average wage

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) According to Article 45(1), (2), and (4) of the Employment Insurance Act, the daily wage, which serves as the basis for calculating job-seeking benefits (hereinafter “basic daily wage”), is the average wage calculated pursuant to Article 2(1)6 of the Labor Standards Act at the time of the most recent severance from employment related to recognition of eligibility for benefits under Article 43(1). If the above average wage is less than the ordinary wage of the relevant employee under the Labor Standards Act, the ordinary wage shall be the basic daily wage (Article 2(1)). If the above calculated basic daily wage is less than the prescribed daily working hours per day prior to the date of severance from employment of the eligible recipient, the minimum daily wage shall be the basic daily wage (Article 45(1)6 of the same Act; Article 46(1)6 of the same Act, Article 45(1)6 of the same Act, Article 2(1)6 of the same Act, provides that the eligible recipient’s daily wage shall be multiplied by the minimum daily wage per hour under the Minimum Wage Act, and Article 50(10(2)4).

2) The “daily wage” as the basis for calculating job-seeking benefits against the Plaintiff ought to be calculated by comparing the amount equivalent to 50% of the average wage calculated as at the time of retirement of the Plaintiff with the minimum daily amount of job-seeking benefits.

A) Average wages as the basis for job-seeking benefits

Comprehensively taking account of the overall purport of the arguments in Gap evidence 6-1, 2, and Gap evidence 7, the plaintiff received KRW 2,766,160 for three months from March 2013 to May 2013, which was about six months prior to departure from employment, and received KRW 3,582,80 in total as an individual income, the remainder after deducting taxi commission from daily transportation income was paid KRW 3,582,960 for 3,58,960 for three months from May 2013. Thus, since the amount that the plaintiff received during the three months prior to departure from employment is deemed to have no big difference from the above amount, the amount equivalent to 50% of average wage is 34,505 won [69,010 won(6,348,960 won ±92 days)].

The Defendant asserts that “the average wage shall be calculated on the basis of only the amount of wages excluding excess taxi commissions.” However, in the event that a transportation company has left the remaining income after deducting the taxi commission from daily transportation income as an individual’s income in addition to paying a certain amount of wages calculated on the basis of the number of actual working days of each month to the taxi drivers under its jurisdiction, the remainder after deducting the above taxi commission, which is an individual’s income, is deemed to have been paid for work in consideration of the unique characteristics of the work form and the convenience of calculation, etc. Therefore, this also constitutes a wage, and thus, the remaining income after deducting the taxi commission from the transportation income should be included in calculating the average wage, which serves as the basis for job-seeking benefits (see Supreme Court Decision 98Du15269, Apr. 25, 200). The Defendant’s above assertion is

B) Minimum daily amount of job benefits

According to the evidence No. 3 (the evidence No. 5) of the Plaintiff and the instant company, the working hours set between the Plaintiff and the instant company are five hours. The minimum working hours should be calculated by five hours. As such, the minimum working hours should be calculated by five hours. As such, the daily job-seeking amount based on the minimum basic daily amount is 21,870 won (4,860 won x 5 hours x 90/100).

The Plaintiff asserts that “The “the verification report on the calculation of taxi transport costs” prepared by certified public accountants according to the order of Incheon Metropolitan City refers to KRW 10,226 per hour, and the daily average working hours of taxi drivers in Incheon Metropolitan City may be recognized as approximately 11 hours per day. The Plaintiff worked for about 11 hours from March 2013 to May 2013. The Plaintiff and the instant company attempted to avoid the application of the Minimum Wage Act, and thus, the contractual working hours, which form the basis for the calculation of the minimum daily amount of job-seeking benefits, should be eight hours, are determined within the scope of working hours set by the Labor Standards Act (see Article 2 subparag. 7 of the Labor Standards Act); however, the “fixed working hours” cannot be deemed as different depending on the actual working hours of the Plaintiff, and the labor contract between the Plaintiff and the instant company cannot be deemed as null and void, and thus only the fixed working hours shall not be deemed null and void.

C) Plaintiff’s amount of job-seeking benefits

The amount equivalent to 50% of the average wage calculated as at the time of retirement of the Plaintiff (34,505 won) exceeds the minimum daily amount of job-seeking benefits (21,870 won). Therefore, the Plaintiff’s job-seeking benefits should be calculated based on 34,505 won, an amount equivalent to 50% of the average wage.

3) The amount of error to be returned by the Plaintiff

As seen above, the Plaintiff’s daily amount of job-seeking benefits should be calculated on the basis of KRW 34,505. The Plaintiff’s disposition that deemed the amount of job-seeking benefits as KRW 21,870 is erroneous in calculating the amount of job-seeking benefits.

On April 3, 2014, the Defendant corrected the daily amount of job-seeking benefits from KRW 34,992 to KRW 21,870, and notified the Plaintiff to return KRW 1,469,640 per week to the Plaintiff. As seen earlier, the correct daily amount of job-seeking benefits for the Plaintiff is KRW 34,505, and as such, the reasonable daily amount of job-seeking benefits for the Plaintiff is KRW 54,057 (=34,92-34,505) x 111 days.

4) Sub-committee

Therefore, the part of the Disposition in this case which notified the return of KRW 1,415,583 (i.e., KRW 1,469,640-54,057) in excess of KRW 54,057 (i.e., KRW 1,469,640) in excess of the amount to be overpaid

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. However, since the part against the defendant who revoked the return disposition as to the part exceeding KRW 1,415,583 of the judgment of the court of first instance is unfair, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The defendant's remaining appeal is dismissed as it is without merit. It is so decided as per

[Attachment]

Judges Kim Jong-ju (Presiding Judge)

1) In light of the difference in the daily amount of job-seeking benefits 13,122 won (34,90 won-21870 won), the number of days subject to calculation of the amount of excess wage is 111 days.

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