Plaintiff (Law Firm Shin, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Minister of Employment and Labor

December 5, 2019

1. The Defendant’s disposition suspending the Plaintiff’s business on October 30, 2018 is revoked for one month.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. Pursuant to Article 23(1) of the Employment Security Act, the Plaintiff is a person who reported to the Defendant the following writing boxes (No. 18, No. 7, and No. 1) (Evidence No. 18, No. 7).

1. Title of employment information provider: ○○○; Employment information means: Internet (site name omitted, site name 2 omitted);

B. On the job information site (site name omitted) operated by the Plaintiff, job offer advertisements with the following descriptions were posted around 2017 (Evidence No. 2).

(Omission of List)

“Status” in the above table Nos. 1, 2, 4, 5, and 6 is an address in which no address exists, and Nos. 3 is a park site [No. 4, 8, 9 (including a serial number; hereinafter the same shall apply).]

On November 13, 2017 and November 17, 2017, a public official affiliated with the Defendant posted a phone number with the phone number indicated in the table Nos. 1, 2, 5, and 6 as of November 17, 2017. The name of a person who registered the job offer advertisement Nos. 1 was not a “ Do governor,” and the name of a person who registered the job offer advertisement Nos. 2, 5, and 6 was not a phone number (Evidence No. 3).

C. On September 17, 2018, the Defendant notified the Plaintiff of the administrative disposition as stated in the following box, and requested the Plaintiff to present his/her opinion thereon (Evidence No. 17).

본문내 포함된 표 예정된 처분의 제목 직업안정법 제25조 위반에 따른 행정처분(사업정지 1개월) 처분의 원인이 되는 사실 원고가 운영하는 (사이트명 생략)에 ‘□□□□’, ‘△△△’, ‘◇◇◇◇’, ‘☆☆☆’, ‘▽▽▽▽▽▽’, ‘◎◎◎◎’ 등 6개 사업장에 대한 구인광고를 게재하면서, 업체명(성명) 및 주소를 허위 기재하여 직업정보제공사업자의 준수사항을 위반함 처분하고자 하는 내용 사업정지 1개월(직업정보제공에서의 구인·구직 부분에 한함) 법적근거 및 조문내용 1. 직업안정법 제25조, 같은 법 시행령 제28조 2. 직업안정법 제36조, 같은 법 시행규칙 제42조 [별표2] 행정처분기준 2. 개별기준 다. 직업정보제공사업 2) 법 제25조(준수 사항)를 위반한 경우 : 1차 위반

D. On October 4, 2018, the Plaintiff submitted to the Defendant the same opinion as the purport of the following written boxes (No. 18).

Although the factual relations contained in the main text are unclear, it is deemed that the Plaintiff violated Article 28 subparag. 1 of the Employment Security Act. However, the Plaintiff indicated the name of the business entity and the name of the business entity, and did not make any false entry. The Plaintiff is registered as a material registered by the business entity. Although the Plaintiff’s “business name” cannot be confirmed, the “name” is indicated as a “name” at the time of entry. The identity of the job offerer is clearly identified. In light of Article 28 subparag. 2 of the Employment Security Act, the instant site is currently indicated the exact phone number of the job offerer. The current site is currently indicated in the job offerer’s accurate phone number. The Plaintiff is confirming that the relevant phone number is still existing upon entry of the job offerer. The Plaintiff is not exposed if an ambiguous address is recorded. However, there may arise variables such as change of address and telephone number following the expiration of the period, but is trying to prevent exposure to false job offer advertisements to the greatest

E. On October 30, 2018, the Defendant rendered a disposition suspending the business for one month (hereinafter “instant disposition”) by citing the following reasons for the disposition as stated in the following box (Evidence A1) against the Plaintiff (hereinafter “instant disposition”).

Articles 25 and 36 of the Employment Security Act, Article 28 of the Enforcement Decree of the same Act, Article 42 [Attachment Table 2] of the Enforcement Decree of the same Act, Article 42 of the Enforcement Decree of the same Act, shall apply mutatis mutandis to one month (Article 25, Article 28 of the Employment Security Act, Article 28 of the Employment Security Act, and Article 42 of the Enforcement Rule of the same Act, for the period of suspension of posting false names (name) and job placement advertisements

F. On November 13, 2018, the Plaintiff filed an administrative appeal seeking the revocation of the instant disposition with the Central Administrative Appeals Commission, but was dismissed on June 11, 2019 (Evidence A 4).

[Reasons for Recognition] Gap's Evidence Nos. 1, 4, Eul's Evidence Nos. 1 through 4, 8, 9, 17, and 18, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. Procedurally unlawful assertion

The Defendant asserted Article 25 subparag. 3, Article 36(1)3, and Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act as the grounds for the instant disposition. However, the written disposition is not “Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act,” but only “Article 28 of the Enforcement Decree of the Employment Security Act,” and the relevant statutes were not properly specified.

B. The assertion of illegality in substance

1) The non-existence of the grounds for disposition

A) The instant disposition was made on the ground that “the Plaintiff violated the matters to be observed under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act” on the premise that “the name, name, and address of the job offerer stated in the job offer advertisements posted by the Plaintiff is false.”

However, Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act provides that the matters to be observed shall not include the job offerer's name (or the job offerer's name) and the job offerer's contact information shall not be indicated by the post offerer's letter, but shall not include the job offerer's name, name and address.

However, the Defendant did not specifically prove that “the name, name, and address of the job offerer listed in the job offer advertisement published by the Plaintiff are inconsistent with the facts, and what is the reason why the difference arises.”

Even if it is not so, the plaintiff was unable to recognize that the name, name, and address of the job offerer are false, and there was no authority and duty to examine them. Nevertheless, the plaintiff was making the best efforts to verify the identity of the job offerer.

In light of these points, the plaintiff did not violate the code of practice under Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act.

B) Article 36 of the Employment Security Act only provides for a disposition suspending the business thereof. Even if the Plaintiff violated matters to be observed under Article 28(1) of the Enforcement Decree of the Employment Security Act, it cannot be deemed that the degree of damage to the public interest is so large that the instant disposition should be taken.

2) The assertion of deviation from discretionary power

Even if the grounds for the disposition of the interpreter are recognized, the disadvantage that the plaintiff will suffer is much more likely to suffer due to the disposition of this case than the infringement of public interest that may arise due to the plaintiff's act. The disposition of this case is a disposition that deviates from discretion

3. Relevant statutes;

The entries in the attached statutes are as follows.

4. Determination

A. Judgment on procedural illegality

1) Arrangement of Plaintiff’s assertion

The plaintiff asserts that there is a procedural error because the underlying statute stated in the disposition of this case is not specified in the disposition of this case. This seems to be an assertion of violation of Article 23 (1) of the Administrative Procedures Act and Article 14-2 of the Enforcement Decree of the same Act.

2) Relevant legal principles

When an administrative agency takes a disposition, it shall, in principle, present the basis and reasons for the disposition to the relevant party (Article 23(1) of the Administrative Procedures Act). In such cases, the administrative agency shall specifically state the facts causing the disposition and the relevant statutes or municipal ordinances and rules (Article 14-2 of the Enforcement Decree of the Administrative Procedures Act): Provided, That in light of the basis and purpose of the administrative agency’s disposition that excludes arbitrary decision and allows the relevant party to properly cope with the administrative remedy procedure, and the relevant reasoning presented to the extent that the relevant party can be aware of the grounds, the disposition cannot be deemed unlawful even if the grounds and reasons are not specified in the disposition. In such a case, “case where the grounds were presented” refers to a case where it is sufficiently known that the relevant party was made at the time of the disposition, taking into account the contents of the disposition, relevant Acts and subordinate statutes, and the overall process until the disposition was made, and thus, it is deemed that there was no hindrance to moving into the administrative remedy procedure (see, e.g., Supreme Court Decision 2016Du64975, Jan.).

3) Facts of recognition

A) On December 29, 2017, the head of the Daegu Regional Employment and Labor Office requested the Plaintiff to submit his/her opinion on the notification of the administrative disposition as stated in the following written boxes (No. 10).

2. Where he/she violates Article 36 of the Employment Security Act and Article 42 [Attachment Table 2] of the Enforcement Rule of the same Act, Article 42 [Attachment Table 2] of the Employment Security Act and Article 25 of the Enforcement Rule of the same Act; 2. Where he/she violates Article 36 of the same Act and Article 42 [Attachment Table 2] of the Enforcement Rule of the same Act.

B) On January 17, 2018, the Plaintiff submitted to the head of the Daegu Regional Labor and Labor Office Daegu District Office an opinion as stated in the following box (Evidence No. 11).

Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act, which is included in the main text, provides that ① the job offerer’s name or the job offerer’s name is not indicated (if the job offerer’s name or the job offerer’s name is not indicated) and ② the contact information of the job offerer is indicated as the job offerer’s letter, etc. In this case, the site of this case does not constitute “where the job offerer’s name or the job offerer’s name is indicated in the job offering advertisement” under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act. (2) In the case of contact information of the job offerer, rather than the job offerer’s name, the job offerer’s name or the job offerer’s name is indicated in the form of wire or wireless telephone, and the contact information is clearly indicated. The Plaintiff’s job offering advertisement does not fall under the case where the job offerer’s name or the job offerer’s name is not indicated but does not violate Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act.

C) On February 1, 2018, the head of the Daegu Regional Employment and Labor Office rendered two-month prior disposition suspending the business (hereinafter “instant prior disposition”) against the Plaintiff on the grounds of the same disposition as the following written boxes (Evidence B No. 13).

Article 25 and Article 36 of the Employment Security Act, Article 28 of the Enforcement Decree of the same Act, Article 42 [Attachment Table 2] of the Enforcement Decree of the same Act, Article 42 of the Enforcement Decree of the same Act, Article 28 of the same Act, shall apply mutatis mutandis, for two months (2 months from February 20, 2018 to April 19, 2018) of the publication of false job offerer's name and address

D) On February 13, 2018, the Plaintiff filed an administrative appeal seeking the revocation of the instant prior disposition with the Central Administrative Appeals Commission. The Plaintiff’s claim was accepted on the ground that “The disposition authority under Article 36(1) of the Employment Security Act exists in the Defendant, the Special Self-Governing Province Governor, the head of a Si/Gun/Gu, and the head of the Daegu Regional Employment and Labor Office, and there is no delegation on the authority for the head of the Daegu Regional Employment and Labor Office’s Daegu District Office.” and “the instant prior disposition is an administrative disposition taken by an unincorporated agency” (Article 14 and 16 evidence)

[Reasons for Recognition] Each entry of evidence Nos. 10, 11, 13, 14, 16, and the purport of the whole pleadings

4) Determination

The Defendant rendered the instant disposition on the premise that “the Plaintiff violated the matters to be observed under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act” on the premise that “the name, name, and address of the job offerer stated in the job offer advertisement published by the Plaintiff is false.”

However, the instant disposition is based on the Act and subordinate statutes, not only Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act, but also Article 28 of the Enforcement Decree of the Employment Security Act. Article 28 of the Enforcement Decree of the Employment Security Act lists the total of six matters to be observed. As such, there appears to be a mistake that does not specify the relevant statutes specifically.

However, in light of the following circumstances, the Plaintiff was fully aware of the grounds and reasons for the instant disposition at the time of the instant disposition, and it appears that there was no particular hindrance to the instant disposition to proceed to the administrative remedy procedure. Thus, the Defendant, while rendering the instant disposition, presented reasons to the extent that the Plaintiff can be aware of the grounds for the disposition. Thus, the Defendant did not err in violating Article 23(1) of the Administrative Procedures Act and Article 14-2 of the Enforcement Decree of the same Act. The Plaintiff’s assertion on other premise is not acceptable.

① The instant disposition is a disposition made as a follow-up measure of the instant prior disposition, and the content dealt with as a key issue in the instant prior disposition is an issue.

In the prior notification of the instant prior notification, the content of “not to publish any job offer advertisement whose identity is uncertain,” which is part of the matters to be observed under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act, was indicated. Therefore, it was sufficiently known that the relevant statutes are “Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act.” The Plaintiff also presented its opinion to the effect that the application of Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act is unreasonable.

② Prior notice of the instant disposition specifies “the fact that constitutes the cause of the instant disposition” to the effect that “the Plaintiff entered the name (name) and address of the company in the job offer advertisement.” Examining the contents of the matters to be observed under each subparagraph of Article 28 of the Enforcement Decree of the Employment Security Act, which can be related to the above contents is only matters to be observed under subparagraphs 1 and 2. After receiving prior notice of the administrative disposition, the Plaintiff also presented his opinion on the premise that “Article 28 subparag. 1 and 2 of the Enforcement Decree of the Employment Security Act” was “Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act.” In this case, the Defendant, at the time of the instant court, specified the applicable law of the instant disposition as “Article 28 subparag. 2 of the Enforcement Decree of the Employment Security Act,” and the Plaintiff presented an opinion on the “Article 28 subparag. 2 of the Enforcement Decree of the Employment Security Act.” However, it is difficult to deem that the content of the opinion presented was related to the violation of Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act.

③ In addition, there is no circumstance to deem that there was an obstacle to the Plaintiff’s moving to the administrative remedy procedure due to the grounds and reasons presented by the Defendant while rendering the instant disposition.

B. Determination as to substantial illegality

1) Whether the Plaintiff violated Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act

A) Under the premise that “the name, name, and address of the job offerer stated in the job offer advertisement published by the Plaintiff are false,” the Defendant deemed that “the Plaintiff violated the matters to be observed under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act” and accordingly, issued the instant disposition based on Article 36(1) of the Employment Security Act.

In this paper, first, we examine whether the job offerer's name, name and address stated in the job offer advertisement can be seen as violating the code of practice under Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act if the name, name and address of the job offerer are false, and examine whether the plaintiff violated the code of practice under Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act.

B) Article 28 Subparag. 1 of the Enforcement Decree of the Employment Security Act provides that “No job offer advertisement in which the identity of a job offerer is uncertain because the name of the job offerer (or the name of the job offerer) is not indicated, or because contact information of the job offerer is indicated by the job offerer’s letter, etc.” shall be observed.

In light of the language and text, it can be seen that only ① indicate the name of the job offerer (or the name of the job offerer) and ② provide that the job offerer's contact information shall not be indicated by the letter of resignation, etc. in order to avoid stating job offer advertisements in which the identity of the job offerer is uncertain. It does not include any content that the job offerer's name, name, and contact information should be consistent with the truth.

In regard to this, the Defendant’s assertion that the identity of the job offerer should be verified through the job offer advertisement with due regard to the phrase “not to publish job offerers whose identity is uncertain.” However, administrative laws and regulations which serve as the basis of the indicative administrative disposition should be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the party against whom the administrative disposition is taken. Even if the teleological interpretation that takes into account the legislative intent and purpose is not entirely excluded, such interpretation does not deviate from the ordinary meaning of the language and text (see, e.g., Supreme Court Decisions 2007Du13791, 13807, Feb. 28, 2008; 201Du3388, Dec. 12, 2013). Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act provides that “the identity of the job offerers is uncertain” as the case where the job offerer’s name and contact address are not clearly known.

(B) Article 28 Subparag. 2 of the Enforcement Decree of the Employment Security Act provides that “In the advertisement of job offer and job seeking in employment information media, the address and telephone number of the job offerer and job seeker shall be entered, and the address and telephone number of the job offerer shall not be entered,” and it does not include any content that the address and telephone number should be true.”

C) The matters to be observed under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act does not require “the name, name, and address of the job offerer stated in the job offering advertisement” to be “the job offerer’s name, and address indicated in the job offering advertisement.” Nevertheless, the Defendant deemed that “the Plaintiff violated the matters to be observed under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act” and rendered the instant disposition based on Article 36(1) of the Employment Security Act, on the premise that “the job offerer’s name, name, and address indicated in the job offering advertisement published by the Plaintiff is false.” Even if the job offerer’s name, name, and address indicated in the job offering advertisement published by the Plaintiff are false, this does not constitute a violation of the matters to be observed under Article 28 subparag. 1

D) Furthermore, the Defendant’s disposition grounds for the instant disposition did not include “the fact that the Plaintiff did not indicate the name of the job offerer (or the name of the job offerer) or indicated the contact information by the job offerer’s letter, etc.”

E) The Plaintiff’s act specified as the ground for the instant disposition does not constitute a violation of the matters to be observed under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act. There is no ground for the instant disposition.

2) Sub-committee

Without examining the remainder of the issue, the instant disposition should be revoked as it is unlawful because there is no ground for the disposition.

5. Conclusion

The plaintiff's claim is justified and it is so decided as per Disposition.

(attached Form omitted)

Judges Long-gu Seoul Special Metropolitan City Mayor (Presiding Judge)

1) The date of the initial report was July 1, 2014; and thereafter, several revisions have been made. The details indicated in the main text are based on December 3, 2018.

Note 2) Any provision inconsistent with the Orala law was amended to have been amended.