2014Nu7192 Order to return employment maintenance support payment and revocation of additional collection, etc.

Dae Young LbnB Co., Ltd.

The Commissioner of the Central and Central Regional Labor Agency;

Suwon District Court Decision 201Guhap13379 Decided April 5, 2012

Seoul High Court Decision 2012Nu11562 Decided August 30, 2012

Supreme Court Decision 2012Du21598 Decided September 4, 2014

November 14, 2014

November 28, 2011

1. The defendant's appeal is dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the defendant.

1. Purport of claim

The Defendant’s order to return KRW 28,282,960 granted to the Plaintiff on April 22, 2011 and the decision to additionally collect KRW 44,219,730, which was issued by the Plaintiff.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for this Court to be stated is as follows: (a) the reasoning for this Court’s judgment is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, inasmuch as the reasoning for the first instance judgment is as stated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, with respect to the allegation of illegality within the scope of disposition of the first instance judgment.

[2] As to the allegation of illegality regarding the scope of disposition

As to the scope of the amount subsidized by fraud or other improper means under Article 35(1) and (2) of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010)

In full view of the characteristics of employment security programs and employment maintenance support, the subject and scope of subsidies for employment maintenance, the details and form of the provisions of the statutes governing restrictions on subsidies due to fraudulent acts, the return order in the case of fraudulent receipt, additional collection, and the nature of future restrictions on payment, etc., the amount that may be ordered to be returned to a person who received employment security support by fraud or other improper means is limited to those provided by fraudulent or other wrongful means.

Furthermore, Article 35(2) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008) and Article 35(2) of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010) stipulate the amount to be additionally collected as “amount (or an amount not exceeding five times) received by false or other unlawful means” and Article 35(2) of the same Act defines as “amount to be collected by additional collection”; and in full view of the text and structure of the relevant provision regarding additional collection, as well as the nature of additional collection, such as the fact that the amount to be collected is a disciplinary disposition, the additional collection should be based on the amount related to such fraudulent or other unlawful means (see, e.g., Supreme Court Decisions 2003Du9640, Nov. 28, 2003; 2046Du105, Oct. 27, 2006).

Therefore, the defendant can calculate and impose the amount to be returned and the amount to be additionally collected on the basis of the amount of support for the date actually worked during the period of employment maintenance measures (suspension of business). If the above evidence is added to the amount of evidence No. 4, it is found that the date when the worker actually worked during the period of employment maintenance (suspension of business) is the same as the date indicated in the attached Table 1 calculation sheet (hereinafter referred to as the "Calculation sheet"), and it is recognized that the amount of unlawful receipt and additional collection are the same as the stated in the "legal amount of disposition" column. Thus, the part ordering the return of more than 20,817,654 won among the disposition of this case and the part ordering additional collection exceeding 31,49,086 won is unlawful.

D. Sub-determination

Ultimately, the portion exceeding KRW 20,817,654 among the order to return KRW 28,282,960 in the instant disposition and exceeding KRW 4,219,730 should be revoked (On the other hand, the Constitutional Court shall revise ex officio as 8429 of the former Employment Insurance Act (amended by Act No. 9315 of May 11, 2007), which was the basis for the instant disposition, to the extent that the appellate court’s decision was unconstitutional on the ground that the above order to return KRW 20,817,65 was rejected, and the portion of the instant order to return KRW 15,00,00,000, which was the first instance court’s decision, was unconstitutional on the ground that the above order to return KRW 20,61,00,000,000,000,000,000,0000,000,000) was unconstitutional on the ground that it violated the principle of comprehensive delegation under Article 75.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance with the same conclusion is legitimate, the defendant's appeal shall be dismissed and it is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Nown Korea

Judge Lee Ro-man