(영문) 서울고등법원 2011.12.15. 선고 2011누28297 판결

2. On January 22, 2010, the part of the Defendant’s disposition against the Plaintiff that limits the return of new employment promotion incentives and the payment of the said incentives shall be revoked.

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

Purport of claim and appeal

1. Purport of claim

On January 22, 2010, the judgment that the Defendant’s restriction on the payment, return, and additional collection of the subsidy for the promotion of new employment against the Plaintiff was revoked, and that the purport of the appeal was revoked;

The text shall be as shown in the text.

Reasons

1. Scope of the trial;

On January 22, 2010, the Defendant returned 4.2 million won of the new employment promotion subsidy to the Plaintiff, and issued an order to restrict the payment of the subsidy and to additionally collect 16.2 million won from February 6, 2009 to October 5, 2010 (hereinafter “instant disposition”). The Plaintiff filed a lawsuit seeking the cancellation of the instant disposition, and the first instance court ruled in favor of the Plaintiff to partly cancel the additional collection of 16.2 million won of the instant disposition. However, the Defendant did not appeal, and only appealed, the scope of the judgment of the court of first instance is limited to the claim seeking the return of the new employment promotion subsidy and the revocation of the part that limits the payment of the subsidy among the instant dispositions against the Plaintiff.

2. Details of the instant disposition

A. On December 1, 2008, the Plaintiff (formerly named “B labor law firm”) employed C on December 1, 2008, received total of KRW 4,200,000,000 as follows, and applied for the incentives for September 6, 2009.

A person shall be appointed.

B. As a result of a survey on whether the supply and demand of the Plaintiff’s above incentives is appropriate on or around November 2009, the Defendant (the “Administrator of the Seoul Western District Office before the change”) deemed that, even though the Plaintiff had already been aware of C, he was employed by formally arranging C through the Internet website to receive the new employment promotion incentive, he received the above incentives.

C. Accordingly, on January 22, 2010, the Defendant issued the instant disposition against the Plaintiff in accordance with Article 35 of the Employment Insurance Act (amended by Act No. 1037, May 31, 2010; hereinafter the same shall apply), Article 56 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same shall apply), Article 78(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009); Article 78(1)3 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010); and (3) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 2, 2010); (4) the purport of the present disposition including evidence No.2, evidence No. 1, No.

3. Whether the ground for the instant disposition exists

A. The plaintiff's assertion

The Plaintiff asserts to the effect that it does not constitute fraud or other improper means to receive a new employment promotion subsidy due to C’s employment since it was employed by the Plaintiff’s employee D’s friendly employment promotion C, but it was in accordance with due process prescribed by the Employment Insurance Act, and the Employment Insurance Act does not distinguish formal and substantial employment mediation as a requirement for payment of a new employment promotion subsidy.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Whether the restriction on payment and return are lawful

1) Criteria for judgment

Considering the legislative purport of the new employment promotion incentive system, the meaning of referral, the competitiveness and the importance of the new employment promotion incentive in the labor market of those belonging to the vulnerable class in employment, etc., even if a business owner had undergone the prior interview of a job seeker prior to his/her employment promotion office, etc., he/she cannot be employed as it is, and only where he/she is able to receive the new employment promotion incentive, he/she shall be determined that he/she may be employed and subject to the procedures provided by Article 26(1) of the Enforcement Decree of the Employment Insurance Act, such as the referral of the employment security office, etc., thereby allowing him/her to receive the new employment promotion incentive only after confirming whether the job seeker is a person belonging to the vulnerable class in employment as prescribed by the above statutes.

However, there may be cases where a business owner has the intent to immediately employ persons belonging to the vulnerable class in employment, regardless of whether or not to pay the new employment promotion subsidy, regardless of the business owner’s eligibility and ability required by the business owner. Nevertheless, if the business owner received the new employment promotion subsidy through the intermediation, etc. of employment security offices, etc. formally with hiding such fact, it constitutes a case where the business owner received the new employment promotion subsidy by referring to “any false or other unlawful means” under Article 35 of the former Employment Insurance Act. If an administrative agency issues an unfavorable administrative disposition against the relevant business owner for such reason, such as restitution, disposition, etc., and files an appeal seeking cancellation of such disposition, the business owner bears the burden of proving that the business owner received the new employment promotion subsidy by means of concealment and formal mediation procedures (see Supreme Court Decision 2010Du28373, Aug. 18, 2011).

2) Facts recognized

Comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 16, Eul evidence Nos. 16, Eul evidence Nos. 1, 4, 5, 9, 10, and 13, Eul's employee D's friendly job offering C recommended Eul to the plaintiff's representative, the plaintiff's employment security office, etc. on July 23, 2008 and October 23, 2008, requested job seeking on November 24, 2008, and the plaintiff's employee D registered job offering on the Worknet on October 21, 2008. The plaintiff's employee D applied for job seeking through the Worknet of the plaintiff company, and the plaintiff's employee D asked for job seeking through the plaintiff's employee recruitment, and recommended Eul to the plaintiff's representative, the plaintiff's employer, the plaintiff's employer, and the defendant's employee D's employee D's job offering and employment support documents.

3) Determination

In light of the above facts in light of the above determination criteria, the plaintiff had already been aware of C through D. However, the evidence submitted by the defendant alone that the plaintiff had the intention to immediately employ C regardless of whether or not to pay the new employment promotion subsidy, and it is insufficient to say that the plaintiff received the new promotion subsidy through the arrangement of employment security offices, etc. formally through the Internet website workshop, and there is no evidence to deem otherwise that the plaintiff was employed by being arranged only formally through the Internet site workshop in order to receive the new employment promotion subsidy. In addition, the defendant merely considered the plaintiff's formal mediation as a ground for the disposition of this case, and did not consider the fact that the plaintiff received the above subsidy through the arrangement of employment security agencies, etc. even though he had the intention to finally employ C as set forth in the above determination criteria.

Therefore, since the plaintiff's assertion that there is no ground for the disposition of this case is reasonable, it is unnecessary to examine the remaining arguments of the plaintiff, and the disposition of this case is unlawful.

4. Conclusion

Therefore, the part of the disposition of this case that limits the return of new employment promotion incentives and the payment of the above incentives is illegal, so the plaintiff's appeal is accepted, and the part against the plaintiff among the judgment of the court of first instance is revoked, and the part that limits the return of new employment promotion incentives and the payment of the above incentives among the disposition of this case is