(영문) 서울행정법원 2018.5.15. 선고 2017구단31845 판결

A. On December 31, 2016, the Plaintiff: (a) retired from employment of KTM Co., Ltd.; (b) applied for recognition of eligibility for employment insurance benefits to the Defendant on January 4, 2017; (c) obtained recognition of eligibility for payment of KRW 240 days for the fixed benefit payment period; and (d) obtained recognition of eligibility for payment of KRW 43,416 for a daily amount of job-seeking benefits; and (e) received job-seeking benefits for KRW 7,641,170 for 176 days on seven occasions from January 11, 2017 to July 5, 2017.

B. On August 2, 2017, the eighth unemployment recognition date, the Plaintiff filed an application for the recognition of unemployment (hereinafter referred to as “application for the recognition of unemployment”). On July 14, 2017, during the period subject to the recognition of unemployment, from July 6, 2017 to August 2, 2017, the Plaintiff: (a) applied for the recognition of unemployment (hereinafter referred to as “application for the recognition of unemployment”); (b) on July 27, 2017, the Plaintiff took four-time job-seeking activities with business entities, including, but not limited to, the tax accounting corporation’s contact details and the second-class tax accounting corporation’s job-seeking job-seeking activities on the said four-day job-seeking status, deeming that such activities were conducted on the same date as the date on which the instant application was made on the same seven-day job-seeking benefits (hereinafter referred to as “the Plaintiff’s application for the recognition of unemployment status”). (iii) on August 14, 2017.

D. The Plaintiff dissatisfied with the instant disposition and filed a request for review on August 22, 2017, but the employment insurance examiner dismissed the Plaintiff’s request for review on September 25, 2017.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1, 5, 6, 10, 11, and 14, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to Article 4 of the Framework Act on Administrative Regulations in violation of the principle of statutory reservation, administrative agencies cannot limit the rights of citizens due to regulations that are not based on the law (Paragraph 3), and regulations are directly regulated under the law, but the detailed contents may be determined by Presidential Decree, Ordinance of the Prime Minister, Ordinance of the Ministry, Ordinance of the Ministry, or Municipal Ordinance or Municipal Rule, as delegated by the law or upper-tier law. However, in cases where delegation is specifically determined and delegated with regard to matters that require delegation due to their nature as a matter of expertise or technical or minor nature, it can be determined by public announcement, etc. (Paragraph 2). However, the ground for job-seeking benefits cited by the Defendant ("recognition on the same day" is not directly prescribed by the law, and the law or upper-tier law does not delegate the detailed contents thereof to the subordinate law, and the "work guidelines for unemployment recognition of the Ministry of Employment and Labor," which set the above restriction, is merely an internal guidelines without external binding force. The instant disposition in question is unlawful as it infringes upon the Plaintiff's

2) procedural defect

A) Since the Plaintiff did not know that re-employment activities conducted on the same day are recognized only once, the Defendant, pursuant to Article 17(5) of the Administrative Procedures Act, Article 22(1) of the Civil Petitions Treatment Act, and Article 6(4) of the Enforcement Decree of the Civil Petitions Treatment Act, notified the Plaintiff of the fact that two job-seeking activities conducted on July 17, 2017 are recognized only once and demanded supplementation. However, the instant disposition was immediately taken without such procedure.

B) In rendering the instant disposition, the Defendant did not specifically present the grounds for the instant disposition, including relevant laws and regulations.

(iii) deviation from and abuse of discretionary power;

With respect to two job-seeking activities for tax accounting corporations, the difference between the support date stated in the application for unemployment recognition and the job-seeking verification date stated in the application for unemployment verification by the Plaintiff is merely due to the Plaintiff’s erroneous entry, and there was no intention to receive the job-seeking benefits at all. In such a case, the payment of job-seeking benefits is a violation of law as it has lost the appropriateness of means and minimum of infringement, and the balance of legal interests, and thus has been abused and abused discretion.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) As to the assertion of violation of the principle of statutory reservation

A) The principle of statutory reservation is understood not only to be sufficient if administrative action is merely based on the law, but also to include the area of basic and important meaning for the state community and its members, especially in the area related to the realization of the fundamental rights of the people, but also to include the requirement that the legislator, the representative of the people, should decide on its essential matters, namely, the principle of parliamentary reservation. In this case, it is difficult to uniformly define what matters must be regulated by the legislators by the formal law, and it can be determined individually in consideration of the importance of benefits or values related to specific cases. Article 75 of the Constitution provides that "the President may issue Presidential Decree with regard to the matters delegated by the law." Article 75 of the Constitution provides that "The President may issue Presidential Decree with regard to the matters delegated by the law, the executive of the law, as well as setting the specific scope." The "matters delegated by the law" has to be prescribed within the scope of the law, and in particular, it is necessary to determine whether there is any change in the contents and scope already delegated by the Presidential Decree, and to be specific and specific.

B) The employment insurance system is an active employment security system aimed at preventing unemployment, promoting employment, developing and improving workers’ vocational skills through the enforcement of employment insurance, strengthening the State’s vocational guidance and job placement services, and facilitating workers’ livelihood stability and job-seeking activities by providing unemployment benefits and facilitating their job-seeking activities. Furthermore, the payment of job-seeking benefits belongs to social security rights as follows: (a) certain standard; (b) the applicant is the head of the employment security office by actively re-employment activities; and (c) the payment of job-seeking benefits is made only when the applicant receives unemployment recognition from the employment security office; and (d) the process of recognition of unemployment is more beneficial than directly restricting citizens’ fundamental rights; and (e) it is difficult to deem that the level of efficient density is required to be the area that restricts citizens’ fundamental rights under

고용보험법 제40조(구직급여의 수급 요건) 제1항 제2호, 제4호에 의하면 구직급여는 이직한 피보험자가 근로의 의사와 능력이 있음에도 불구하고 취업하지 못한 상태에서 '재취업을 위한 노력을 적극적으로 한 경우'에만 지급되고, 보다 구체적으로는 고용보험법 제43조(수급자격의 인정)에 따라 수급자격의 인정을 받은 자가 제44조(실업의 인정)에 따라 '실업의 인정 1)'까지 받아야 구직급여를 받을 수 있는 것인데, 제44조는 제1항에서 '구직급여는 수급자격자가 실업한 상태에 있는 날 중에서 직업안정기관의장으로부터 실업의 인정을 받은 날에 대하여 지급한다.', 제2항 본문에서 '실업의 인정을 받으려는 수급자격자는 제42조에 따라 실업의 신고를 한 날부터 계산하기 시작하여 1주부터 4주의 범위에서 직업안정기관의 장이 지정한 날(이하 "실업인정일"이라 한다)에 출석하여 재취업을 위한 노력을 하였음을 신고하여야 하고, 직업안정기관의 장은 직전 실업인정일의 다음 날부터 그 실업인정일까지의 각각의 날에 대하여 실업의 인정을 한다.', 제4항에서 '직업안정기관의 장은 제1항에 따른 실업을 인정할 때에는 수급자 격자의 취업을 촉진하기 위하여 재취업활동에 관한 계획의 수립 지원, 직업소개 등 대통령령으로 정하는 조치를 하여야 한다. 이 경우 수급자격자는 정당한 사유가 없으면 직업안정기관의 장의 조치에 따라야 한다.'라고 각 규정하고 있고, 같은 법 제56조(지 급일 및 지급 방법) 제1항은 '구직급여는 대통령령으로 정하는 바에 따라 실업의 인정을 받은 일수분을 지급한다.'라고 규정하고 있다. 이에 따른 고용보험법 시행령 제63조 (실업의 인정)는 제1항에서 '수급자격자가 법 제44조 제2항에 따라 실업의 인정을 받으려면 실업인정일에 신청지 관할 직업안정기관에 출석하여 실업인정신청서에 직전 실업인정일의 다음 날부터 해당 실업인정일까지의 재취업활동 내용을 적은 후 수급자격증을 첨부하여 제출하여야 한다.', 제3항에서 '제1항에 따른 재취업활동 인정기준은 고용노동부령으로 정한다.'라고 각 규정하고, 같은 시행령 제67조(수급자격자의 취업촉진을 위한 조치)는 고용보험법 제44조 제4항 전단에서 정한 조치로 '재취업활동에 관한 계획의 수립 지원(제1호)', '실업급여 등 보험에 관한 안내와 교육(제2호)' 등을 들고 있으며, 이에 따른 고용보험법 시행규칙 제87조는 제1항에서 '구인업체를 방문하거나 우편 .인터넷 등을 이용하여 구인에 응모한 경우(제1호), '채용관련 행사에 참여하여 채용을 위한 면접에 응한 경우'(제2호) 등을 적극적인 재취업활동의 유형으로 열거하면서, 제10호에 '제1호부터 제9호까지의 규정에 준하는 경우로서 고용노동부장관이 정하는 경우'를 두는 한편, 제2항에서는 '임신·출산·육아·노약자의 간호, 그 밖의 가사상의 이유로 이직한 자 중 그 이직 원인이 아직 소멸되었다고 보기 어려운 경우'(제1호), '직 업안정기관의 장이 미리 지정하여 준 직업소개나 직업지도를 위한 출석일에 정당한 사유 없이 출석하지 아니한 경우(출석하지 아니한 기간으로 한정한다)(제4호) 등을 제1 항에도 불구하고 근로의 의사와 능력을 가지고 적극적인 재취업활동을 하지 아니한 것으로 보아 실업을 인정하지 아니하는 경우로 열거하면서 제5호에 '제1호부터 제4호까지의 규정에 준하는 경우로서 고용노동부장관이 정하는 경우'를 두고 있다. 그리고 이에 따라 실업인정 및 재취업지원규정(고용노동부 예규)은 제10조 제5항에서 '직업안정기관의 장은 규칙 제87조 제2항 각 호의 어느 하나에 해당하는 경우 또는 다음 각 호의 어느 하나에 해당하는 경우에는 적극적인 재취업활동을 하였다고 볼 수 없으므로 실업의 인정을 하여서는 아니 된다.'라고 규정하면서, '동일 사업장만을 반복하여 구직 활동을 하는 경우(1호)', '전화나 인터넷 등으로 구인처를 탐문만 하는 경우(2호)', '직업 안정기관의 장이 지시한 구직활동 등 재취업활동을 정당한 사유 없이 이행하지 않은 경우(8호)'등을 규정하면서, 9호에 '그 밖에 제1호부터 제8호까지의 규정에 준하는 경우'를 두고 있다.

On the other hand, each of the above statutes does not provide for any criteria for frequency and frequency of reemployment activities that can be seen as active reemployment activities. The Minister of Employment and Labor determines and provides that, in principle, the Minister of Employment and Labor shall conduct reemployment activities at least 4 weeks in the period subject to verification of unemployment, at least 4 weeks in at least 2 weeks in the period subject to verification of unemployment, and at least 2 weeks in at least 4 weeks in the period subject to verification of unemployment after 5, and the period subject to verification of unemployment shall be recognized only once in the same day, and the reduction of job-seeking benefits in proportion to the number of times if the reemployment activities are not conducted (i.e., at least 4 weeks in the period subject to verification of unemployment, at least 4 weeks in the period subject to verification of unemployment, and at least 4 weeks in the period subject to verification of unemployment, at least 5 weeks in the first and fourth five weeks in the period subject to verification of unemployment and the head of each employment security office shall provide the same opportunity for each of the above activities subject to verification of unemployment.

In full view of the above circumstances, it cannot be deemed that the Employment Insurance Act delegates to subordinate laws and regulations on the criteria for recognition of a specific reemployment activity in accordance with the need to flexibly regulate the criteria for recognition of a unemployment recognition in line with social and economic changes. Although the instant guidelines, which directly stipulate that the re-employment activity conducted on the same day is recognized only once as an external binding guidelines, are merely an internal guidelines, insofar as the Defendant issued a specific direction of re-employment activity to the Plaintiff in accordance with such instruction, as long as the Defendant did not comply with such instruction, thereby obtaining recognition of unemployment for the pertinent period. The failure to pay job-seeking benefits to the Plaintiff does not constitute a violation of Articles 44(4) and 56(1) of the Employment Insurance Act, Articles 63(3) and 67 of the Enforcement Decree of the same Act, Articles 87(2)5 and 10(5)8 of the Enforcement Decree of the same Act, and Article 10(4) of the Framework Act on Administrative Regulation and Administrative Regulations.

2) As to the procedural defect argument

A) Examining whether there was a violation of the duty, such as a request for supplement, in addition to the purport of the entire pleadings in the statement of evidence No. 8, the Defendant’s public official in charge provides the Plaintiff, on August 3, 2017, with the following facts: (a) on July 6, 2017, from July 6, 2017 to July 19, 2017, the job-seeking benefits for one week are treated as site wages only during the period from July 17, 2017; and (b) on whether there was another job-seeking activity during the first period, the Plaintiff could be found to have failed to submit relevant materials.

Article 17 (5) of the Administrative Procedures Act ("administrative agency") cited by the plaintiff ("if there are defects, such as defects in the documents required to be submitted, the administrative agency shall, without delay, request the applicant to supplement them for a reasonable period specified for supplementation) and Article 22 (1) of the Civil Petitions Treatment Act ("the head of the administrative agency shall, if necessary to supplement the documents received, request the petitioner to supplement them without delay within a reasonable period specified). In this case, the defects subject to supplementation can be supplemented. In this case, the plaintiff already expired at the time of submission of the application for unemployment recognition of this case ( August 2, 2017) and the 8th period subject to unemployment recognition. In this case, the plaintiff did not have any other job-seeking fact, and the plaintiff's assertion that the defendant violated his duty, such as a request for supplementation, is without merit

B) Whether there was a violation of the duty to present reasons

In addition to the statement in Gap evidence No. 1, the defendant stated that "the plaintiff was engaged in job-seeking activities on July 14, 2017; July 18; and July 28, 2017; however, it was confirmed that the attached evidence for job-seeking activities was confirmed that the first day of the same month; the second day of the same month; the second day of the same month; the second day from July 6, 2017 to the 19th day of the same month; it was recognized that only once the second day was re-employment activities conducted on the same day; the plaintiff's argument that the plaintiff was reduced to 1 week during the period subject to the recognition of the unemployment; and the second day only was paid job-seeking benefits on the 21st day during the period subject to the recognition of the unemployment; and the plaintiff's argument that the above disposition was based on Article 70 of the Enforcement Decree of the Employment Insurance Act and Article 46 of the same Act and Article 76 of the same Enforcement Decree of the same Act is reasonable.

3) As to the assertion of deviation and abuse of discretionary power

As seen earlier, the payment of job-seeking benefits is a beneficial administrative act, and in light of the form, stay, and language and text of each relevant statute, the right to determine whether to issue a disposition belongs to a discretionary act for which the competent administrative agency is reserved. In addition, in the case of judicial review of discretionary acts, considering the possibility of determining public interests at the discretion of the administrative agency, the court should only examine whether the relevant act is deviates from or abused from discretionary power without drawing an independent conclusion, and the determination of whether to deviate from or abuse of discretionary power is subject to such determination of mistake and violation of the principle of proportionality (see, e.g., Supreme Court Decision 2010Du21204, Dec. 23, 2010).

In this case, the following circumstances, which can be known by adding to the purport of the entire arguments and the facts acknowledged in the above 1th day of the oral argument, are the measures to promote the stabilization of workers' livelihood and job-seeking activities by providing necessary benefits when workers are unemployed. The payment of job-seeking benefits is limited to the case where workers received unemployment recognition from the head of the Employment Security Office by actively re-employment activities. If the criteria for determining active re-employment activities are excessively mitigated, the institutional intent of the system is likely to be followed. The criteria for frequency and frequency of active re-employment activities demanded in the guidelines in this case are too excessive or strict, and the plaintiff seems to have been aware, or to have been sufficiently aware, of the above criteria already received several guidances on the same day (the fact that the plaintiff actually made on different days on the same date seems to have been derived from such reasons, and the argument that the plaintiff's act constitutes a simple error, but it is difficult to see that the plaintiff's above disposition is legitimate in light of the plaintiff's allegation that there is an abuse of discretion against the job-seeking benefits in this case.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Gin-young

Note tin

1) "Recognition of unemployment" means that the head of an employment security office actively seeks employment while an eligible recipient under Article 43 is unemployed.

Article 2 subparagraph 4 of the Employment Insurance Act (Article 2 subparagraph 4 of the Employment Insurance Act).