(영문) 서울행정법원 2014.1.23. 선고 2013구합56133 판결

1. On September 28, 2012, the part that exceeds 120,000 won among the disposition of ordering return of unemployment benefits of KRW 1,120,000 against the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

Purport of claim

The defendant's disposition of ordering the return of unemployment benefits against the plaintiff on September 28, 2012 shall be revoked.

Reasons

1. Details of the disposition;

A. On September 29, 2011, the Plaintiff retired from the Plaintiff Company B. On July 25, 2012, the Plaintiff, upon applying for recognition of eligibility for employment insurance to the Defendant, was recognized as being eligible for the payment of KRW 210,000 for the benefits and KRW 40,000 for the daily amount of job-seeking benefits.

B. The Plaintiff received unemployment benefits (job-seeking benefits) totaling KRW 1,440,000 (36 days) from August 1, 2012 to September 5, 2012 after recognition of the aforementioned eligibility for benefits.

A person shall be appointed.

C. Meanwhile, from September 3, 2012, the Plaintiff provided labor to C (hereinafter “Nonindicted Company”) from September 3, 2012, and on September 5, 2012, the Plaintiff did not report the fact that the Plaintiff provided labor to the Defendant as above at the time of filing an application for unemployment recognition.

D. On September 26, 2012, the Plaintiff voluntarily reported to the Defendant that “Around September 26, 2012, the Plaintiff was employed in the non-party company and provided labor to the non-party company from September 3, 2012.”

E. On September 28, 2012, the Defendant ordered the Plaintiff to return the amount of KRW 1,120,000 (120,000) for unemployment benefits (1,20,000) + (1,000,000) for one time, pursuant to Articles 61 and 62 of the Employment Insurance Act and Article 104 of the Enforcement Rule of the same Act, on the ground that the Defendant received unemployment benefits from the non-party company without reporting his employment from September 3, 2012 during the period subject to the recognition of unemployment (hereinafter “each of the instant dispositions”).

[Reasons for Recognition] The entry of the evidence of Nos. 1 through 7 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff voluntarily reported the illegal receipt of job-seeking benefits from September 3, 2012 to September 5, 2012 (25 days from August 9, 2012 to September 2, 2012). The instant disposition ordering the return of KRW 1,00,000 for the period during which not providing labor as well as 120,000 for job-seeking benefits (25 days from August 9, 2012 to September 2, 2012), which falls under the date of providing labor, is illegal and unfair in light of Article 104 subparagraph 3 of the Enforcement Rule of the Employment Insurance Act.

B. Relevant statutes

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

C. Determination

Article 61(1) of the Employment Insurance Act provides that anyone who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date on which he/she received, or attempted to receive, unemployment benefits, and that Article 61(2) provides that, notwithstanding the main sentence of paragraph (1) of the same Article, if any false or other unlawful means meet the requirements prescribed by Presidential Decree, such as failing to report under Article 47(1) or filing a false report, job-seeking benefits shall not be paid for the period subject to the recognition of unemployment. Article 62(1) of the same Act provides that the head of an employment security office may order the person who has received job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits paid to him/her, and Article 80(2) of the Enforcement Decree of the Employment Insurance Act provides that "where he/she fails to report or makes a false report when he/she applies for unemployment

Meanwhile, Article 104 of the Enforcement Rule of the Employment Insurance Act provides that all job-seeking benefits shall be returned as a matter of principle with respect to the criteria for issuing an order to return job-seeking benefits following fraudulent acts (Article 104 of the Enforcement Decree of the Employment Insurance Act). In cases falling under any subparagraph of Article 80 of the Enforcement Decree of the Employment Insurance Act, only the job-seeking benefits shall be returned for the unemployment period recognized by such reason (Article 80 of the Enforcement Decree of the Employment Insurance Act). In cases where a person falling under any subparagraph of Article 80 of the Enforcement Decree of the Employment Insurance Act voluntarily files a report on fraudulent acts before an investigation by the Defendant, only the job-seeking benefits paid for the date of providing labor

Around September 3, 2012 to September 5, 2012, the non-party company did not report the fact that it provided labor to the non-party company at the time of applying for the recognition of unemployment. This constitutes grounds under Article 80 subparag. 1 of the Enforcement Decree of the Employment Insurance Act. Furthermore, the Plaintiff voluntarily reported the above misconduct around September 26, 2012, which was before the investigation by the Defendant, constitutes Article 104 subparag. 3 of the Enforcement Rule of the Employment Insurance Act.

Therefore, the Defendant ordered the return of KRW 120,00,00, which is the full amount of job-seeking benefits paid during the period subject to the recognition of unemployment, to the job-seeking benefits that the Plaintiff received for three days from September 3, 2012 to September 5, 2012 pursuant to Article 104 subparag. 3 of the Enforcement Rule of the Employment Insurance Act, that is, the job-seeking benefits that the Plaintiff received for the date when the Plaintiff provided labor. However, the Defendant issued an order to return KRW 120,000, which is the full amount of job-seeking benefits paid during the period subject to the recognition of unemployment. As such, the part exceeding KRW 120,00, out of the instant disposition is unlawful (the Defendant distinct from the provision of labor under Article 69 of the Enforcement Decree of the Employment Insurance Act,

Although asserting that the employment is based on the provision of labor, and Article 69 of the Enforcement Decree of the Employment Insurance Act provides that the provision of labor constitutes employment, the mere fact that the Enforcement Decree of the Employment Insurance Act distinguishs the provision of labor and the provision of employment, cannot be deemed to mean only a simple provision of labor that does not reach employment. Meanwhile, the instant disposition does not order the Plaintiff to fully return the job-seeking benefits that the Plaintiff received during the period subject to verification of unemployment, but rather ordered the return of the job-seeking benefits that the Defendant applied Article 104 subparagraph 2 of the Enforcement Rule of the Employment Insurance Act on the premise that the Plaintiff falls under Article 80 subparagraph 1 of the Enforcement Decree of the Employment Insurance Act.

3. Conclusion

The plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as there is no ground.

Judges

The presiding judge, Kim Jong-sik

Judges Cho Jin-jin

Judges Kim Gin-dong

Note tin

1) Job-seeking benefits of 120,000 won received for three days from September 3, 2012 to September 5, 2012, which overlap with employment.

2) Return amount of the period subject to the recognition of unemployment at issue (the amount KRW 1,00,000 that has been paid for 25 days from August 9, 2012 to September 2, 2012)