(영문) 수원지방법원 2019.4.2. 선고 2018구합71046 판결

The decision that the Defendant rendered on January 10, 2018 against the Plaintiff to restrict the payment of unemployment benefits, order to return, and additional collection shall be revoked.

Reasons

1. Details of the disposition;

A. On August 5, 2015, the Plaintiff filed an application for eligibility for job-seeking benefits with the Defendant under Article 43 of the Employment Insurance Act on the ground that he/she retired from office in June 15, 2015, and in August 5, 2015, recognized the eligibility for benefits of KRW 180,000 for the fixed benefit payment days, the daily amount of job-seeking benefits, and received KRW 6,536,000 for 152-day job-seeking benefits from August 12, 2015 to January 10, 2016.

B. However, on September 16, 2015 and October 14, 2015, the Plaintiff, a unemployment recognition date, filed an application for recognition of unemployment on its behalf, with the spouse located in Korea while staying abroad.

C. On January 10, 2018, the Defendant decided to restrict the payment of unemployment benefits to the Plaintiff under the main sentence of Article 61(1) of the Act on the ground that the Plaintiff received unemployment benefits by fraud or other improper means under Article 61(1) of the Employment Insurance Act (hereinafter referred to as the “Act”), and to order the return of KRW 2,107,00,000, paid for 2,107,000, and 3,784,000, paid after the date of suspension of payment under the former part of Article 62(1) of the Act, and additionally collect KRW 1,204,00 pursuant to the latter part of Article 62(1) of the Act (hereinafter referred to as the “instant disposition”).

D. On January 25, 2018, the Plaintiff filed a petition for review with an employment insurance examiner on January 25, 2018, but was dismissed on March 5, 2018. On April 10, 2018, the Employment Insurance Review Committee filed a petition for reexamination, but was dismissed on May 9, 2018.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 3, Eul evidence Nos. 2, 3, 5 through 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 89(6) of the Enforcement Rule of the Employment Insurance Act provides that the Plaintiff’s spouse shall be deemed to have violated the obligation to report directly his/her efforts to re-employment under Article 89(6) of the Enforcement Rule of the Employment Insurance Act, or the Plaintiff’s failure to pay unemployment benefits solely on the ground that the report was made during his/her stay in the Republic of Korea for job-seeking activities, by interpreting otherwise, would be in violation of the equal rights provision under the Constitution, as it discriminates against the payment of unemployment benefits on the ground of an unexpected circumstance, such as whether the Plaintiff was engaged in employment activities in Korea or in a foreign country.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Whether an eligible recipient who intends to report reemployment via the Internet must complete reporting of job-seeking benefits by directly using an authorized certificate

According to Article 40(1)2 and 44(2) and (3) of the Employment Insurance Act, in order to receive unemployment benefits (job-seeking benefits), the insured who has retired from employment must actively endeavor to re-employment in the “unemployed condition despite having the intention and ability to work” (hereinafter referred to as the “employment recognition date”) and report the efforts to re-employment to the Employment Security Office on the date designated by the head of the Employment Security Office (hereinafter referred to as the “employment Security Office”) and obtain the recognition of unemployment (Procedural requirements). As to the procedural requirements for receiving unemployment benefits, Article 44(2) of the Employment Insurance Act provides that, in principle, an eligible recipient who intends to obtain the recognition of unemployment can, in principle, obtain the recognition of unemployment by attending the Employment Security Office on the date designated by the head of the Employment Security Office within one week from the date of unemployment declaration and reporting his/her efforts for re-employment, and subparagraph 3 of Article 44 of the former Enforcement Decree of the Employment Insurance Act provides that an eligible recipient may directly report his/her income falling under any of the following subparagraphs 4 through "Internet activities" and subparagraph 36 of Article 98.

Meanwhile, Article 44(3) of the Employment Insurance Act provides that "Where a beneficiary falls under any of the following subparagraphs, notwithstanding paragraph (2), he/she may obtain recognition of unemployment by submitting a certificate stating the reason why he/she could not appear at the Employment Security Office," and provides that "where he/she could not appear at the Employment Security Office for seven consecutive days due to illness or injury (Article 1) and the period of attendance at the Employment Security Office is less than seven consecutive days due to interview with a job offerer according to the employment placement of the Employment Security Office (Article 2) or where he/she could not appear at the Employment Security Office to undergo vocational skills development training directed by the head of the Employment Security Office (Article 3) or where he/she could not appear at the Employment Security Office due to a natural disaster

In full view of the language, structure, form, and content of the above-mentioned relevant statutes, it is clear that the beneficiary is entitled to receive the report of reemployment by attending the Employment Security Office in principle. As such, the purport of the beneficiary’s direct attendance is to prevent unjust payment of job-seeking benefits in lump sum by directly checking the content of job-seeking efforts and the intent and ability of employment for reemployment. If possible, the beneficiary is seeking to expand employment in the Republic of Korea by re-employment in the Republic of Korea. In addition, in that job-seeking benefits pursuant to the employment insurance system are beneficial benefit administration and its operation depends on practical conditions such as financial situation, etc., a broad legislative formation right is recognized. Ultimately, similar to the attendance of the beneficiary who intends to report reemployment through the Internet, it is reasonable to view that the beneficiary is obligated to complete the report of job-seeking benefits by directly using an authorized certificate.

Furthermore, inasmuch as seeing the purport of ' obligation to report directly on employment efforts' under Article 89(6) of the Enforcement Rule of the Act as above, it is difficult to view that denying the validity of a report which is not directly performed in the Republic of Korea among the recipients' overseas job-seeking activities constitutes discrimination without reasonable grounds, and such interpretation does not constitute a violation of the right to equality under Article 11(1) of the Constitution.

As long as the Plaintiff had his spouse staying abroad file an application for recognition of unemployment in the Plaintiff’s name, regardless of whether the Plaintiff actually engaged in the job-seeking activities abroad, it shall be deemed that the Plaintiff’s payment of job-seeking benefits by fraud or other improper means as prescribed in Articles 61 and 62 of the Act constitutes a case where job-seeking benefits

3. Conclusion

The claim of this case is dismissed as there is no reasonable ground.