2020Du51587 Revocation of a disposition of business suspension

Plaintiff:

Law Firm Seo-gu, Attorneys Lee Jong-soo et al., Counsel for defendant-appellant

Minister of Employment and Labor

Law Firm LLC, Attorneys Kim Dong-chul et al., Counsel for the defendant-appellant-appellant-appellee

Seoul High Court Decision 2020Nu37033 Decided September 25, 2020

February 25, 2021

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Relevant provisions and legal principles

A. Article 36(1)3 of the Employment Security Act provides that when a person providing employment information is likely to harm public interests, "where a person providing employment information violates this Act or any order issued under this Act", the business may be suspended for a fixed period not exceeding six months or the registration or permission may be revoked.

Article 25 of the Employment Security Act provides that "if a job offerer is a business owner in arrears with a list disclosed pursuant to Article 43-2 of the Labor Standards Act at the time of the application for job offer, the job offerer shall publish such fact so that the job offerer can find the job offerer (Article 1)." (Article 20 of the Minimum Wage Act shall not provide job offer information below the minimum wage determined and publicly notified pursuant to Article 10 of the Minimum Wage Act, and other matters prescribed by Presidential Decree (Article 28 of the Enforcement Decree of the Employment Security Act). According to delegation, Article 28 of the Employment Security Act provides that "the name of the job offerer (or the name) is not indicated or the job offerer's contact address is indicated as the job offerer's letter, etc., the job offerer's address or telephone number shall not be stated, and the address or telephone number of the job offerer's person providing employment information shall not be stated (Article 20 of the Minimum Wage Act).

The Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. provides that "no job offer advertisement shall be placed on any establishment that conducts any prohibited act under Article 4 of the Act on the Punishment of Acts of Arranging Commercial Sex Acts, Etc." (No. 6).

B. Comprehensively taking into account the legislative purpose of Article 25 of the Employment Security Act, Article 28 of the Enforcement Decree of the Employment Security Act, the content and structure of the relevant provisions, etc., where the job offerer’s name (or the name) is not indicated, and the job offerer’s name (or the name) is not specified in Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act, it includes not only the job offerer’s name (or the name) but also the job offerer’s name (or the name) is falsely indicated in the job offerer’s name (or the name). Therefore, in case where the job offerer’s name (or the name) is objectively false job offerer’s name (or the name) is published in employment information media, it should be deemed that the disciplinary measure such as business suspension under Article 36(1)3 of the Employment Security Act is a violation of the matters to be observed by the job offerer’s business operator under Article 2

1) “Principle of strict interpretation of the provisions on the basis of an indivative administrative disposition” means that a disposition should not be extensively or analogically interpreted in a manner unfavorable to the other party subject to disposition beyond the possible scope of the language and text solely on the ground of the need for administrative practice or the need for legislative policy (see, e.g., Supreme Court Decision 2014Du47686, Nov. 24, 2016). The purport of the interpretation unfavorable to the other party subject to disposition is not to be permitted in entirety. The systematic interpretation and objective interpretation is permissible if the possible scope of the language and text is within the possible scope (see, e.g., Supreme Court Decision 2019Du63515, May 14, 2020). In addition, sanctions against violations of administrative statutes are imposed not only on a person who is a real offender but also on a person prescribed by the law and subordinate statutes, barring any special circumstance (see, e.g., Supreme Court Decision 2017Du873714, May 14, 2017).

2) The purpose of the Employment Security Act is to ensure the employment security of workers by providing workers with an opportunity to find a job (Article 1), and Article 25 of the Employment Security Act and Article 28 of the Enforcement Decree of the Employment Security Act, upon delegation thereof, provide that job offerers are in arrears with job offerers, they shall be published on job offer advertisements so that job offerers may know the job offerer’s identity, and that wages offered by job offerers fall short of the minimum wage or advertisements for job offering are not to be published in case of job offering businesses. In light of such legislative purpose, Article 28 subparag. 1 and subparag. 2 of the Enforcement Decree of the Employment Security Act is to protect job offerers by allowing job offerers to know the job offerer’s full identity, address, and telephone number.

3) Such matters to be observed are premised on the fact that the job offerer's full identity (the business name or name), address, telephone number, and other contact details of the job offerers before publishing the job offerer's job offer advertisement in a public auction of employment information system. However, even if the job offerers paid considerable attention to ascertaining the job offerer's full identity, contact information, and business registration details, if there are special circumstances where it is difficult to expect that the job offerers will not post job offer advertisements because of malicious deception and false data submitted by the job offerers are objectively false and there is a justifiable reason not to cause the job offerer's breach of duty, sanctions against the job offerers should not be imposed. Here, determination of whether there is "justifiable reason not to cause the job offerer's breach of duty" should not be based on the subjective perception of the job offerers or their representatives, but on the basis of all relevant persons who objectively assume responsibility such as their families, agents, and employees (see, e.g., Supreme Court Decision 200Du36472, Jul. 9, 20202).

2. Determination as to the instant case

A. According to the reasoning of the lower judgment and the record, since the name (or the name) and address of the six job offer advertisements posted around November 2017 on the Internet site (hereinafter “instant site”) called “(the name omitted)” (hereinafter “instant site”) which is a job information medium operated by the Plaintiff can be objectively false, this is based on the reasoning of the lower judgment and the record. Accordingly, compliance by those job offer information providers under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act is observed.

It constitutes a violation of the matter.

According to the method of operation of the website of this case, a job offerer must make a member to make a job offer advertisement, and it appears that the job offerer himself/herself is a member by entering the name, date of birth, gender, mobile phone information and certification number of a member through a mobile phone communications company in the course of member membership. However, it is not possible to grasp the full identity, address, and business registration of a job offerer, and barring any other special circumstances, barring any justifiable reason, it cannot be deemed that there is a justifiable reason that

B. Nevertheless, the lower court determined that six job offer advertisements posted on the instant website do not violate the code of practice under Article 28 subparag. 1 of the Employment Security Act, on the premise that the job offerer’s identity, such as the name of the business operator, name, and contact information, presented by the job offerer, is merely written in detail regardless of the authenticity thereof, and that the six job offer advertisements posted on the instant website do not violate the code of practice under Article 28 subparag. 1 of the Employment Security Act. In so determining, the lower court erred by misapprehending the legal doctrine on the matters to

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok