Additional collection, revocation, etc. of subsidies for maintaining employment 201Gu/337

A Stock Company

The Deputy Director General of the Central Regional Employment and Labor Office;

November 10, 201

December 8, 2011

1. A disposition that the Defendant rendered against the Plaintiff on April 29, 2011 to additionally collect KRW 53,45,000,000 for employment maintenance support payment, shall be revoked to the extent exceeding KRW 29,130,00.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s order to return KRW 14,565,00 to the Plaintiff on April 26, 201, and the disposition of additional collection of KRW 53,45,00,00, issued by the Defendant against the Plaintiff on April 26, 201 (the date of the disposition was entered in the warden on April 29, 201, which seems to be erroneous).

1. Details of the disposition;

A. The Plaintiff operated wholesale business of electrical equipment and related equipment, and applied for employment maintenance support payment to the Defendant four times from September 2009 to December 2009, and received support of KRW 34,210,000 in total over four times from October 26, 2009 to January 27, 2010.

B. On October 12, 2010, the Defendant issued an order to return KRW 14,565,000 in total received subsidies by fraudulent or other illegal means for September 2009, Oct. 10, 2009, and additionally collected KRW 72,825,000 in total (= KRW 14,565,000), and additionally collected KRW 72,825,000 in total (= KRW 14,565,000) on the ground that the Defendant failed to suspend business as planned for employment maintenance measures reported by the Plaintiff and received subsidies unfairly by submitting false documents (e.g., release records, etc.).

C. On November 12, 2010, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission on the previous disposition of this case. The Central Administrative Appeals Commission changed the amount of KRW 72,825,000 to be collected additionally on March 29, 201, and dismissed the remainder of the claim by changing the amount of KRW 72,45,000 to KRW 53,45,000 ( KRW 2,400,000 per September) + ( KRW 6,085,000 per October) + ( KRW 3,60,000 per November) + ( KRW 3,60,000 per month) + KRW 480,000 per December).

D. On April 26, 2011, the Defendant issued an order to return KRW 14,565,000, total amount of subsidies for retaining employees, and issued an order to additionally collect KRW 53,45,00 (two or five times the amount of illegal receipt) as indicated below (hereinafter “instant disposition”).

A person shall be appointed.

[Reasons for Recognition] The entry of Evidence Nos. 4, 5, Eul Nos. 2, 8, and 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

① The Plaintiff actually suspended his/her business and received subsidies for maintaining employment for workers B, C, D, E, F, and G. Although he/she was dispatched to China, the Plaintiff did not work for his/her family members in China after the suspension of business. C, D, E, F, and G were in fact on a business trip for the business of the business partner during the suspension period, but this is intended to complete the business prior to the suspension of business due to inevitable circumstances. The Plaintiff did not receive subsidies for maintaining employment by fraud or other improper means.

② The Defendant calculated the total amount of subsidies for the relevant month, including the day on which the actual business was performed on the day when the business was performed during the business suspension period, to the day on which the business was performed normally, and calculated the total amount of subsidies for the relevant month.

③ The criteria for calculating the additionally collected amount under Article 78(1) of the Enforcement Rule of the former Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009; amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter “Enforcement Rule of the instant case”) is that the number of unlawful acts subject to the additional collection should be excluded from the number of times of such unlawful acts. Since the Plaintiff had not been discovered by unlawful acts prior to the instant disposition, only twice the additionally collected amount should be imposed. However, the Defendant imposed double to five times additional collection.

④ In light of the fact that the business performed by the Plaintiff’s employees during the period of suspension of business is not regular, and that the Plaintiff’s net profit was reduced rapidly and thus, the Plaintiff’s business has no choice but to take measures to maintain employment under the Employment Insurance Act. If the instant disposition is maintained as it is, the Plaintiff, which is faced with serious financial difficulties, has no choice but to discontinue the business, the instant disposition is too harsh for the Plaintiff compared to the public interest to be achieved.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Determination as to the assertion

Comprehensively taking account of the following circumstances, it is sufficient to view that the Plaintiff received employment maintenance support payment by fraudulent or other illegal means on the ground that it reported that it was performed in accordance with the plan for employment maintenance (suspension) even if it was performed by workers B, C, D, E, F, and G during the period of suspension of business.

(1) The details of the Plaintiff’s overseas business trip during the business suspension period of the Plaintiff’s workers C, etc. are as follows (No. 4).

A person shall be appointed.

A person shall be appointed.

② As such, workers C, etc. were traveling abroad during the business suspension period, and the Plaintiff did not report the change of employment maintenance plan to the Defendant and submitted a false report to the Defendant as if C, etc. did not work, and applied for the principal of employment maintenance land for C, etc. (Evidence B No. 1).

③ The Plaintiff’s worker B was a resident in China, who was working in China, and was working in China as a customer who was working in China, and was working in China. The Plaintiff and the Plaintiff mainly contacted with the Plaintiff through telephone calls and e-mail. The form of the Plaintiff’s work is as is without any change before and after the Plaintiff’s suspension of business (Article 3 and 5).

④ As such, since workers B actually worked abroad in the form of dispatch service, it is difficult to regard them as eligible for employment maintenance support, and even during the suspension period, they seem to have carried out the market survey in China.

(2) Judgment on the argument

Pursuant to Article 19(1)1 of the Enforcement Decree of the Old Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010), employment maintenance support payment is calculated and paid for each employee for a single month unit period. Therefore, if the actual working day is a day at any month, it is reasonable to have the relevant employee return all of the unlawful monthly payment. The Plaintiff’s above assertion is rejected.

(3) Judgment on the assertion

According to Article 35(2) of the Old Employment Insurance Act (amended by Act No. 10337, May 31, 2010), and Article 78(1) of the Enforcement Rule of the instant case, the Minister of Labor may additionally collect double, three, five times the amount of the illegal receipt of subsidies in accordance with the number of times he/she received or applied to receive the subsidies by fraud or other improper means (hereinafter “number of unlawful electricity”) for the last five years prior to the date of detection of fraudulent acts, in addition to ordering the return of the subsidies, from a person who received the subsidies by fraud or other improper means. The Defendant deemed that the Plaintiff’s application for employment maintenance support payment constitutes each illegal power by the number of times he/she received the subsidies, and thus, determined the amount of additional collection of the subsidies by five times (11,12 months).

However, in full view of the following circumstances, it is reasonable to view that the frequency of fraudulent power prescribed in each subparagraph of Article 78(1) of the Enforcement Rule of the instant case does not include the frequency of illegal power that is the subject of detection. ① In light of the purport of Article 78(1) of the Enforcement Rule of the instant case differently stipulating the amount additionally collected due to illegal power that is the subject of detection according to the frequency of illegal power that is within a certain period of five years under each subparagraph of Article 78(1), it is reasonable to see that the frequency of such fraudulent power refers to a separate fraudulent act that is committed before the subject of detection. ② If it is interpreted that the frequency of illegal power that is the subject of detection is included in the frequency of illegal power under Article 78(1)1 of the Enforcement Rule of the instant case, the foregoing provision does not have any room

3. When interpreting that the frequency of fraudulent power under Article 78(1)2 of the Enforcement Rule of the instant case includes the frequency of illegal power subject to detection, and if the illegal application and the illegal supply and demand subject to detection are deemed separate power frequency, the frequency of illegal power due to the illegal act subject to detection in question reaches 4 times immediately, and thus, the above provision is no longer applicable. (4) Each subparagraph of Article 78(1) of the Enforcement Rule of the Employment Insurance Act, as Article 338 of the Labor Ordinance of Ministry of Labor on February 9, 2010, defines the phrase “the number of times a person receives or intends to receive by fraudulent or illegal means during the past five years prior to the date of detection of the illegal power” as “the number of times a person receives or intends to receive a restriction on payment or a return order from the Minister of Labor pursuant to Article 35(1) of the Act for the last five years prior to the date of detection of the illegal power.” The above amendment seems to clearly regulate the meaning of interpretation as seen earlier.

Therefore, the decision of additional collection of KRW 53,45,00 among the dispositions in this case is erroneous as exceeding KRW 29,130,000 (i.e., September, October, November, November, and December of the illegal amount of employment maintenance support payment, and exceeding KRW 14,565,00,000, in excess of KRW 14,565,00,000).

(4) As to the argument

Of the instant disposition, the Defendant’s imposition of KRW 14,565,00 and the additional collection amount of KRW 29,130,000,00 for the Plaintiff out of the scope of discretionary authority is deemed to have been abused or abused. In full view of all the following circumstances, considering the Plaintiff’s assertion, the need for public interest to achieve the instant disposition cannot be deemed to have been less than the disadvantages the Plaintiff would incur, and thus, the imposition of KRW 14,565,00 and additional collection amount of KRW 29,130,00 cannot be deemed to have exceeded or abused the scope of discretionary authority. ① Employment maintenance support payment is a beneficial benefit that is specially granted to an employer who takes necessary measures for employment stability in order to promote workers’ livelihood stability and job-seeking activities through prevention of unemployment, promotion of employment, etc., and thus, it is necessary to eradicate for a long period of time and protect the employment insurance for the public interest by unlawful means. ② The Plaintiff’s act of receiving the employment maintenance support payment for a serious amount of 50 months and its financial demand.

3. Conclusion

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

The presiding judge shall be the highest judge.

Judge Choi Gyeong-hoon

Judges Kim Gin-dong

A person shall be appointed.

A person shall be appointed.