2019Nu5772 Revocation of the restriction on the payment of unemployment benefits and the order to return

A

The head of the Seoul Regional Employment and Labor Office Seoul East Site

Seoul Administrative Court Decision 2019Gudan51447 decided August 29, 2019

November 27, 2019

December 18, 2019

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s disposition of return order of KRW 1,909,940 against the Plaintiff on March 13, 2018, which exceeds KRW 400,00,000, shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The Defendant’s disposition of restricting the payment of job-seeking benefits against the Plaintiff on March 13, 2018, ordering the Plaintiff to return KRW 1,909,940, and imposing additional collection shall be revoked, respectively.

2. Purport of appeal

The following part of the judgment of the court of first instance shall be revoked. The defendant's disposition of ordering the return of KRW 1,909,940 against the plaintiff on March 13, 2018 shall be revoked.

1. Quotation of judgment of the first instance;

The reasons for the entry in this case are as follows: (a) deleted the reasons for the judgment of the court of first instance; (b) amended the "disposition of restricting the payment of job-seeking benefits of this case and the disposition of ordering return of this case" in paragraph (3) as the "disposition of restricting the payment of job-seeking benefits of this case"; and (c) deleted the 14th class eight and added the parts as set forth in paragraph (2) below to that place, and thus, it cited them in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

2. Additional matters to be determined;

6) Determination on whether or not to deviate from or abuse discretionary power

A) The plaintiff's assertion

5 The Plaintiff’s assertion that the existence or absence of the instant disposition grounds is limited to 4 days of actual employment, but it seems that the instant return order disposition ordering the full return of job-seeking benefits related to the period subject to recognition of unemployment (41 days) is an deviation from and abuse of discretionary authority, is judged accordingly.

B) Determination

In full view of the facts acknowledged earlier and the following circumstances admitted by the evidence as a whole, the part of the instant return order ordering the Plaintiff to return the amount exceeding the income earned during the period subject to unemployment recognition as the second time is unlawful in light of the purpose and purport of the unemployment benefits system.

(1) The purpose of the unemployment benefits system is to provide citizens with a social safety network through social security systems, such as social insurance and unemployment insurance (Article 34(2) of the Constitution). The Employment Insurance Act provides for unemployment benefits system for the purpose of contributing to economic and social development (Article 1 of the same Act) and for the purpose of facilitating the stability of workers’ lives and job-seeking activities by providing them with necessary benefits when they are unemployed (Article 34(2)).

The Minister of Employment and Labor shall establish and manage the Employment Insurance Fund (hereinafter referred to as the "Fund") to raise funds necessary for the insurance business, and the Fund shall be created with insurance premiums and the fund operation earnings under the Employment Insurance Act, and other revenues, and the Fund shall be used for limited purposes, such as the payment of unemployment benefits (Article 78, 29, and 80 of the Employment Insurance Act).

Insurance premiums for employment insurance are paid by the Act on the Collection of Insurance Premiums, etc. for Employment Insurance and Industrial Accident Compensation Insurance for each term, and job-seeking benefits are one of the requirements for payment of certain self-employed devices, such as "the insured (worker) who retired from employment for the 18-month period prior to the date of separation from employment shall be at least 180 days in total" (Article 40 (1) 1 of the Employment Insurance Act), and unemployment benefits shall contribute to securing the minimum basis of living for beneficiaries and their families' survival and dignity as human beings.

As such, the right to receive unemployment benefits, which is a kind of entitlement to social security benefits, is guaranteed by the national policy, but the State cannot be deemed to have provided and paid on a mutually advantageous basis in light of its source, etc. However, the unemployment benefits system and the fund being its source are the social safety net and livelihood stability basis for the temporary actual employment threats of many workers. An individual beneficiary has the responsibility to assist the realization of the purpose of the unemployment benefits system, such as applying for a supply and demand only for the period for which he/she satisfies the legitimate requirements by demonstrating a citizen awareness, and receiving unemployment benefits, before he/she was found to lack of inquiry or review by the relevant agency.

In addition, by strictly assessing the requirements for supply and demand, the defendant is obligated to prevent the exhaustion of the fund and establish a foundation for widely expanding unemployment benefits, and to take measures such as strict orders for return of job-seeking benefits where job-seeking benefits have been paid to a person or a period for which the grounds for payment are not recognized: Provided, That in issuing orders for return of job-seeking benefits already paid on the ground that he/she failed to fulfill his/her duty to report employment facts, etc. of beneficiaries, the scope of return shall be determined by considering the actual employment period, income actually accrued, the circumstances leading up to the failure to report, etc., as seen earlier.

(2) Provisions of employment insurance statutes

Article 47 (1) of the Employment Insurance Act provides that an eligible recipient shall report to the head of an employment security office when he/she provides labor during the period subject to verification of unemployment, and Article 62 (1) of the same Act provides that the head of an employment security office may order the recipient of the job-seeking benefits to return all or part of the job-seeking benefits paid by fraud or other improper means

In that regard, the defendant is given discretion to decide whether to exercise the order of return of job-seeking benefits and the amount of return.

However, although Article 62(1) of the Employment Insurance Act does not stipulate any provision on subordinate regulations, Article 80 subparag. 1 of the Enforcement Decree of the same Act and Article 104 subparag. 2 of the Enforcement Rule of the same Act provide that if a person fails to report or falsely reports the fact that he/she provided labor during the period subject to unemployment recognition, he/she shall order the return of job-seeking benefits that he/she received for the period subject to unemployment recognition, but this appears to have presented the standard for the return of job-seeking benefits. Therefore, it cannot be said that the order for return of unemployment benefits is a binding act without discretion.

(3) Specific determination

(A) The portion equivalent to 400,000 won earned during the period subject to unemployment recognition

The fact that the Plaintiff was employed in B for four days from October 1, 2017 to December 4, 2017 during the period subject to the second unemployment recognition (from October 26, 2017 to December 5, 2017) and earned income of KRW 400,000,000,000 during the period subject to the second unemployment verification, and the Plaintiff prepared and submitted an application for the recognition of unemployment (Evidence B No. 8) on December 5, 2017 and stated as follows.

In light of the Plaintiff’s knowledge and experience revealed in the records of this case, the Plaintiff appears to have sufficiently known the fact that the Plaintiff, while preparing and submitting an application for recognition of eligibility for receiving benefits (Evidence B) and an application for recognition of unemployment, has to inform the Employment Security Office of such fact. Nevertheless, the Plaintiff received job-seeking benefits as to all the period subject to recognition of unemployment, without stating the employment in B prior to the recognition of unemployment.

If the plaintiff voluntarily reported the above employment and employment before the defendant's investigation into the employment facts, pursuant to Article 104 (3) of the Enforcement Rule of the Employment Insurance Act, the defendant issued an order of return only for job-seeking benefits, i.e., 186,30 won (=1,909,940 won x 4/41 day) received for the date of providing labor during the period subject to the recognition of unemployment.

In light of the fact that there is no evidence suggesting that ordering the return of KRW 400,000 among the former benefits is too harsh in light of the Employment Insurance Act’s purpose of contributing to the stabilization of workers’ livelihood and the promotion of job-seeking activities and the economic and social development, it is difficult to view that the disposition of ordering the return of KRW 400,000 among the former benefits is an abuse of discretion, even if considering the disadvantages suffered by the Plaintiff, it is difficult to view that the disposition of ordering the return of KRW 400,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000

(B) The portion exceeding 400,000 won

On the other hand, if the Plaintiff applied for job-seeking benefits within the period from October 1, 2017 to December 5, 2017, the unemployment recognition date, the total period of 41 days from November 1, 2017 to April 4 of the same month, and the remainder of 37 days excluding the above 4 days, the Plaintiff appears to have not actually accrued income as the actual condition of the Plaintiff’s employment. Furthermore, if the Plaintiff applied for job-seeking benefits within the period from October 26 to December 30 of the same month, from November 5, 2017 to December 5, 2017, the right to receive job-seeking benefits was recognized for the said period, and the job-seeking benefits were to contribute to economic and social development by paying necessary benefits to the workers’ livelihood stability and promoting their job-seeking activities. In full view of the above, it is difficult to deem that the grounds for the Plaintiff already deprived of 10 days prior to the violation of the Employment Insurance Act to have been unlawful for 10 days prior to returning 90 days.

C) Sub-decision

Therefore, the part exceeding 400,000 won among the disposition of the return order of this case should be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above scope of recognition and the remainder shall be dismissed as without merit. Accordingly, part of the plaintiff's appeal shall be accepted and the decision of the court of first instance which differs from this conclusion shall be revoked and the part exceeding 400,000 won out of the disposition of the return order of this case shall be revoked, and the remaining appeal of the plaintiff shall be dismissed as

The presiding judge, Park Jong-nam

Judges Jeong Jae-ok

Judges are accommodated in judges;