(영문) 부산지방법원 2017.3.31. 선고 2017구합20317 판결

A. On January 31, 2015, the Plaintiff: (a) retired from methyl Co., Ltd. on February 3, 2015; (b) applied for recognition of eligibility for unemployment benefits to the Defendant on February 3, 2015; (c) recognized the eligibility to receive unemployment benefits of KRW 90,000 for the fixed benefit payment days; and (d) received job-seeking benefits of KRW 3,705,140 in total after obtaining unemployment recognition as listed below.

A person shall be appointed.

B. On April 14, 2015, the Defendant confirmed that the Plaintiff’s words were paid KRW 1,152,710 for the third job-seeking benefits on behalf of the Plaintiff even though the Plaintiff had been staying abroad, and issued an order to restrict the payment of KRW 1,152,710 for the third job-seeking benefits received by the Plaintiff on June 29, 2016 (hereinafter “instant disposition”).

[Ground of recognition] The fact that there is no dispute, Gap evidence 2 (including each number, hereinafter the same shall apply), Eul evidence 1, 2, and 4, and the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

The plaintiff asked the defendant whether a third party can apply for recognition of unemployment on behalf of the third party due to his stay abroad, and since the plaintiff's words have applied for recognition of unemployment on behalf of the defendant's employee, the disposition of this case ordering the return of job-seeking benefits by deeming that the plaintiff is responsible for the plaintiff's application for recognition of unemployment.

B. Relevant legislation

It is as shown in the attached Form.

(i)requirements for the recognition of unemployment and for receiving unemployment benefits;

A) Comprehensively taking account of the provisions of Article 40(1)2 and 40(1)4, and Article 44(2) and (3) of the Employment Insurance Act, it is reasonable to interpret that the insured, who was prior to receiving unemployment benefits (job-seeking benefits), has to meet all the procedural requirements (B) such as receiving unemployment recognition by reporting that he/she had been present on the date designated by the head of the Employment Security Office (hereinafter referred to as "date of unemployment recognition") and has been making efforts for reemployment.

B) In particular, Article 44(2) of the Employment Insurance Act provides that an eligible recipient who intends to obtain the recognition of unemployment shall appear at the unemployment recognition date and apply for job-seeking benefits: Provided, That where an eligible recipient is unable to appear at the unemployment recognition date due to reasons prescribed in Article 65(1) through (5) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016; hereinafter the same shall apply), an application for the alteration of the unemployment recognition date shall be made; where an applicant is unable to appear at the unemployment recognition date due to a disease or injury (Article 44(3)1 of the Employment Insurance Act); and where an interview, etc. with a job offerer under the placement of employment security office (Article 44(3)2 of the Employment Insurance Act; Article 44(3)3 of the Employment Insurance Act; Article 44(3)3 of the Enforcement Decree of the Employment Insurance Act; Article 5 of the Employment Insurance Act (excluding those who were present at the Employment Insurance Association or who directly file an application for unemployment recognition).

C) As such, the purport of recognizing the exception to the attendance of a person on the unemployment recognition as a matter of principle for receiving the unemployment recognition is to resolve economic and social difficulties caused by unemployment through the payment of necessary benefits in the event of a worker’s unemployment, and at the same time prevent unfair payment of unemployment benefits due to moral hazard by directly checking the content of job-seeking efforts and capabilities for reemployment. In such cases, where a beneficiary is deemed to have difficulties in normal employment on a mental and physical condition, it shall not be recognized that he/she has failed to actively engage in reemployment activities with his/her intent and ability to work (Article 87(2) of the Enforcement Rule of the Employment Insurance Act), Article 5 of the former Act on the Recognition of Unemployment and the Re-employment Assistance Regulations (amended by the Ministry of Employment and Labor Regulation No. 119, Jan. 9, 2017; hereinafter the same shall apply). In order to confirm whether the beneficiary himself/herself is eligible to appear on the unemployment recognition or not, Article 5 of the former Regulations on the Recognition of Unemployment, etc. (affirmative)

Unless otherwise provided in law, the unemployment recognition period shall not be recognized for all of the periods subject to unemployment recognition.

D) Furthermore, even if a special person for the recognition of unemployment is a person recognized by the head of an employment security office to be able to report directly reemployment activities and income generated through the Internet (Article 65 subparagraph 9 of the Enforcement Decree of the Employment Insurance Act), Article 89(6) of the Enforcement Rule of the Employment Insurance Act provides that "direct reemployment activities and income generated through an information and communication network using an authorized certificate on the date designated by the head of the employment security office shall be reported faithfully through an information and communication network pursuant to Article 89(6) of the Enforcement Rule of the Employment Insurance Act, and Article 9(4) of the former Act provides that, if an eligible recipient stays abroad for personal reasons (excluding overseas employment purposes), 'direct reemployment activities and income generated in the unemployment recognition date' 'direct reemployment activities and income generated in the unemployment recognition date' does not recognize the unemployment of the whole period subject to the recognition of unemployment recognition. In light of the contents and purport of the above provisions, as long as an exception is recognized in the application method of "direct attendance through the Internet" and at least if the applicant does not directly receive unemployment benefits from the unemployment recognition date.

2) According to the health stand for the instant case as to whether the Plaintiff is eligible to receive unemployment benefits, and the evidence revealed earlier, the unemployment recognition date for the period subject to unemployment recognition from March 18, 2015 to April 14, 2015 was as of April 14, 2015. Nevertheless, the Plaintiff was not staying in the Republic of Korea for overseas travel from April 2, 2015 to May 6, 2015, including the unemployment recognition date, and the Plaintiff filed an application for unemployment recognition on April 14, 2015 with the Plaintiff’s family member (or the Plaintiff’s family member) as of April 14, 2015.

According to the above facts, it is reasonable to view that the plaintiff was paid unemployment benefits (job-seeking benefits) for the period subject to recognition of unemployment without filing an application for a change of unemployment recognition or filing a report on "direct re-employment activities and income occurrence within the unemployment recognition date designated without any inevitable reason," and this constitutes a case where the plaintiff received unemployment benefits (job-seeking benefits) by false or other unlawful means as stipulated in Articles 61 and 62 of the Employment Insurance Act.

3) Whether it is necessary to protect the plaintiff who trusted the defendant's wrong guidance

Comprehensively taking account of the aforementioned evidence, evidence Nos. 1 and 3, the Plaintiff’s phone call at the Defendant’s customer counseling center on February 2, 2015, and received information from the Defendant that job-seeking activities may be requested from the Defendant’s employees only by the applicant for unemployment recognition. The Plaintiff received training related to unemployment benefits on February 3, 2015, which is the date of applying for recognition of eligibility for benefits after receiving training on February 17, 2015, and received a desired employment card after receiving training on February 17, 2015, which is the date of applying for recognition of eligibility for benefits, and the Defendant was unable to transmit an application for unemployment recognition to the Plaintiff through the beneficiary education notice or employment desire card on the date of the above unemployment benefits education, and thus, it can be recognized that the Plaintiff instructed the Plaintiff to undergo the unemployment recognition after changing the unemployment recognition date.

According to the above facts, although it was true that the defendant's employee provided false information to the plaintiff, the plaintiff was given the guidance that the representative could not file an application for unemployment recognition from the defendant on the date of applying for recognition of eligibility for benefits and the date of the first application for unemployment recognition, and therefore, the plaintiff could sufficiently know that the plaintiff's answer initially made by the defendant was contrary to the defendant's guidance after the defendant's answer, and therefore, it is necessary to confirm it again to the defendant at least. Nevertheless, since the plaintiff made the plaintiff's words while staying abroad reliance only on the guidance of the defendant's employee at first time and let the plaintiff's words while staying abroad apply for unemployment recognition, it is attributable to the plaintiff who believed the defendant's wrong guidance, and it cannot be said

4) Sub-committee

Therefore, the instant disposition is lawful on the ground that the Plaintiff’s act of receiving unemployment benefits by having another person file an application for unemployment recognition even though the Plaintiff was staying abroad constitutes the act of receiving unemployment benefits by fraud or other improper means.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.