(영문) 서울행정법원 2014.4.24. 선고 2013구합28305 판결

A. The Plaintiff is a corporation that is engaged in wholesale business, such as clothes, taxes, etc. using nine full-time workers. The Plaintiff is an institution that operates the internship system, which is a youth of small and medium enterprises, is entrusted by the Minister of Employment and Labor with affairs concerning youth internship projects by the Minister of Employment and Labor pursuant to relevant statutes, such as Article 25 of the Framework Act on Employment Policy and Article 7 of the Special Act on the Promotion of Youth Employment. The Plaintiff entered into the Agreement on the Support of Smart Academy and Salton (hereinafter referred to as the “Convention”).

B. The Plaintiff entered into an internship contract with B on May 1, 2012, and applied for the 3.5 million won subsidy per month from May 1, 2012 to September 30, 2012, and received the payment. Moreover, the Plaintiff converted B B to a regular employee on November 1, 2012, and applied for the Defendant for the subsidies for conversion to a regular employee.

C. However, on September 12, 2013, the Smart Academy notified the Plaintiff of the fact that the Plaintiff had been in violation of the guidelines for implementation of the youth employment internship system with B employed as an employee before May 1, 2012, and notified the Plaintiff of the fact that the Plaintiff had already violated the guidelines for implementation of the youth employment internship system for small and medium enterprises in 2012. Accordingly, the Plaintiff returned the full amount of the instant internship subsidy to the Smart Academy on September 16, 2013. D. On September 30, 2013, the Defendant rendered a decision not to allow the Plaintiff to apply for the payment of the Plaintiff’s subsidy for conversion to the said regular employment (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

C The representative D hired B, while planning online business, after the university. B had a long transaction with Pyeongtaek and requested the Plaintiff, who had been engaged in online business for a long time, to provide education on the online business. On April 23, 2012, B accepted the request by the Plaintiff and started to perform the online business affairs related to the Plaintiff’s online business after attending the Plaintiff’s office from April 23, 2012. Among the above, D renounced the online business plan due to the circumstances and the need to employ B accordingly, and requested the Plaintiff to employ B. Upon receipt of D’s request, the Plaintiff entered into the instant contract with B on May 1, 2012, and applied for the payment of an internship subsidy in accordance with the instant agreement. Accordingly, B did not have any fact that the Plaintiff was employed before entering into the instant contract with the Plaintiff, but it was unlawful to conclude the instant contract with the Plaintiff on April 23, 2012, based on the premise that the Plaintiff was employed on April 23, 2012.

B. Relevant statutes

It is as shown in the attached Form.

1) The Plaintiff was established on August 1, 2003, and the representative director was replaced from E to F on August 5, 2013. D is operated by C while serving as the current representative director of the Plaintiff and serving as C.

2) Around April 2012, D went to a Dong-dong University, and was requested by the branch, and through the branch, known that D was planning to conduct an interview at the Plaintiff’s office.

3) D and F decided to employ B after having interview with B at the Plaintiff’s office, and called D and F to work for B as the Plaintiff’s office from April 23, 2012. However, D and F did not talk with B as well as with B at the time of interview.

4) B worked as the Plaintiff’s office from April 23, 2012 and worked as the Plaintiff’s online team, and worked as a design, packaging, product registration, etc.

5) On April 23, 2012, the Plaintiff had B access to the site of the employment internship system for small and medium enterprises in the Ministry of Employment and Labor, and the Plaintiff filed an application for internship through a computer installed in the Plaintiff’s office on the same day. In addition, on April 24, 2012, the Plaintiff entered the employment insurance acquisition date in B as of April 23, 2012, and reported the purchase of employment insurance.

6) On May 1, 2012, the Plaintiff entered into an internship agreement with B during the term of the employment contract from May 1, 2012 to May 1, 2013. On the same day, the Plaintiff filed a report on the acquisition date of the insured status B from April 23, 2012 to May 1, 2012. On May 29, 2012, the acquisition date of the insured status of B employment insurance was changed to May 1, 2012.

7) B received KRW 372,800 from F on May 10, 2012, and received monthly payment from the Plaintiff from June 2012.

8) On April 8, 2012, the Smart Academy confirmed whether the Plaintiff’s request for employment as the U.S. interned D, received the Plaintiff’s request for employment, and subsequently selected B as the U.S. intern after reviewing B’s application for employment. In addition, G employees of the Smart Academy visited the Plaintiff on August 8, 2012 in order to check the operational status of the U.S. internship. At that time, D responded to the investigation while introducing himself as the Plaintiff’s office, and did not talk about C.

[Ground of recognition] Facts without dispute, Gap evidence 4, Eul evidence 2 through 8 (including branch numbers in case of additional evidence), witness G, testimony of Eul and the purport of whole pleadings

[Evidence Evidence] Evidence No. 5, Evidence No. 7, and the purport of the whole testimony of witness D

D. Determination

1) The youth internship system is based on Articles 25 and 34 of the Framework Act on Employment Policy, Article 25(1) of the Employment Insurance Act, Article 35 of the Enforcement Decree of the same Act, and Article 7 of the Special Act on the Promotion of Youth Employment. At the same time, if an intern is employed by arranging suitable human resources for a small and medium enterprise having difficulties in job placement, 50% of the salary for a maximum of six months (80,000 won per month) shall be provided to the employing enterprise, and if an intern is converted to a future regular position, 60,000 won per month shall be provided to the relevant enterprise for a maximum of six months. The youth internship system shall not be subject to the provision of the subsidy to be returned to an entrusted institution selected by the Ministry of Employment and Labor, and shall not be subject to the provision of the subsidy to be returned to the relevant enterprise for 10,000 won until the date of application for new employment, and shall not be subject to the provision of the subsidy to be returned to the relevant enterprise.

2) Whether the Plaintiff violated the instant guidelines

B On April 23, 2012, the fact that the Plaintiff applied for an internship by accessing the employment internship site of the Ministry of Employment and Labor for small and medium enterprises on April 23, 2012 is as seen earlier. Therefore, it is determined whether the Plaintiff violated the instant guidelines depending on whether the Plaintiff was employed on April 23, 2012.

However, in light of the following circumstances, it is reasonable to view that the Plaintiff employed B on April 23, 2012, considering the evidence and the purport of the entire pleadings as seen earlier.

A. Examining the employment process of B, the interview on B was conducted at the Plaintiff’s office, and F, as well as D, was present at the Plaintiff’s office. Moreover, in light of the fact that D was not at all talking about B at the time of the interview, and D was requested to employ B as the Plaintiff’s intern in April 2012, as the Plaintiff’s internship, as the Plaintiff’s intern in charge, D appears to have participated in the interview as the Plaintiff’s office rather than the representative of C, as the Plaintiff’s office chief.

B. B was not only at the time of the above interview, but also from D, F, or other employees of the Plaintiff, and even thereafter, B was working in the Plaintiff’s office from April 23, 2012, and was actually working. In light of the fact that the Plaintiff reported the acquisition of insured status as B’s employment insurance on April 23, 2012 as of April 23, 2012, the Plaintiff recognized B as his employee from April 23, 2012. Meanwhile, on May 1, 2012, the Plaintiff changed the acquisition date of insured status as B from April 23, 2012 to May 1, 2012, it appears that the Plaintiff was subject to restriction on the Plaintiff’s participation in B’s employment insurance as at the time of reporting the change to B’s employment insurance status. This appears to have been subject to restriction on the Plaintiff’s employment insurance as at the time of the Plaintiff’s application to B.

D. B received KRW 372,80 from F, who is an employee of the Plaintiff, from April 23, 2012 to April 30, 2012. In addition, F, who was in charge of the Plaintiff’s interview, has long been in charge of the Plaintiff’s representative director, E was not the representative director when the Plaintiff is employed, and D, who is the office of the Plaintiff, performed the job offering and interview according to the Plaintiff’s instructions, appears to have been in charge of operating the Plaintiff from April 23, 2012 to April 30, 2012. Therefore, it is reasonable to deem that F, under the Plaintiff’s name, received benefits from the Plaintiff from the Plaintiff during the period from April 23, 2012 to April 30, 2012. Meanwhile, F, in light of the fact that the Plaintiff transferred the insured status B to B on May 10, 2012 and the date of employment transfer to B from May 27, 2012.

E. F and D, the actual operator of the Plaintiff, are women, which are likely to invite the Plaintiff to avoid the instant guidance by making the appearance of D and concluding the instant internship contract later, as if they were employed by D, even though they were actually employed by the Plaintiff.

Therefore, the Plaintiff’s conclusion of the internship contract with B on May 1, 2012 constitutes a violation of the instant guidelines, since the Plaintiff again employed a person who had been employed as an intern, and the instant disposition on the same ground is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.