(영문) 서울고등법원 2011.1.19. 선고 2010누24175 판결

The judgment of the first instance shall be revoked. The defendant shall revoke the order of return of KRW 36,840,000 for the new employment promotion subsidy of KRW 28,80,000 for the plaintiff and the subsidy of KRW 36,840,00 for the use of small and medium enterprise experts.

Reasons

1. Details of the disposition;

A. The Plaintiff is a company established on May 14, 1998 for the purpose of manufacturing and selling the domestic production of wire and radio communication equipment.

B. On January 2, 2006, the Plaintiff newly employed B who was unemployed for more than three months during the period of unemployment, and applied for the payment of new employment promotion incentives to seven persons, including B, etc. for the payment of new employment promotion incentives, and the Defendant paid the Plaintiff the incentives as shown in attached Form 1.

C. On January 1, 2006, the Plaintiff employed C as a small and medium enterprise expert, and applied for the payment of incentives and new employment promotion incentives to 7 persons, such as C, etc., by applying for the payment of incentives for utilizing specialized human resources in small and medium enterprises. The Defendant paid the incentives to the Plaintiff as shown in attached Form 2.

D. On August 20, 2009, the Defendant: (a) had the Plaintiff registered job seeking with the knowledge that it does not meet the requirements for the supply of new employment promotion incentives; (b) had the Plaintiff receive new employment promotion incentives by means of unemployment period Do and post-employment promotion report; (b) received new employment promotion incentives by means of false or other unlawful means; (c) Article 35(1) and (2) of the Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter referred to as the “Act”); (b) [Attachment 1] Article 36(1) of the Enforcement Decree of the Employment Insurance Act (amended by the Presidential Decree No. 1065, Mar. 11, 2009; (b) [Attachment 6] Article 36(1) of the Employment Insurance Act (amended by the Presidential Decree No. 9315, Dec. 31, 2008; and (d) returned new employment promotion incentives to the Plaintiff.

[Reasons for Recognition] Gap evidence 1, 2, Eul evidence 1, Eul evidence 2-4, Eul evidence 2-4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 35(1) of the Act provides that an order shall be issued to a person who received support for employment security activities by fraud or other improper means to return the already provided support. As such, the “grants paid during the period of payment restriction” under Article 56(2) of the Enforcement Decree of the Act enacted upon delegation shall be limited to those granted by fraud or other improper means. The instant disposition ordering the return of the subsidies for utilization of small and medium enterprise experts and new employment promotion subsidy lawfully paid in relation to C, etc. on the ground that they were paid within the period of payment restriction due to illegal receipt of and payment to B, etc. is unlawful.

2) Ordering a legitimate return of the bounty, other than the illegally received bounty and additional collection, is imposed twice for the purpose of disciplinary action. Thus, the instant disposition, which violates the principle of prohibition of double punishment under the Constitution, and is identical to additional collection, goes against the principle of prohibition of excessive punishment under the Constitution.

B. Relevant statutes

Attached Form 3 is as shown in the "relevant Acts and subordinate statutes".

C. Determination

1) Scope of grants subject to an order of return

A) Article 56(1) of the Enforcement Decree of the Act provides for restrictions on the return of subsidies, etc. already paid and the payment of unpaid subsidies, etc., in cases where a person applied for, or intended to receive, subsidies, incentives, or training expenses for vocational skills development (hereinafter “subsidies, etc.”) by fraud or other improper means. Article 56(2) of the Enforcement Decree of the Act provides that a person who received, or intended to receive, subsidies, etc. by fraud or other improper means does not provide any subsidies, etc. for one year from the date when he/she received, or intended to receive, subsidies, etc., or other subsidies, etc., for which one year has passed from the date when he/she received, or intended to receive, such subsidies, etc., was ordered to be returned, and does not require that subsidies, etc. were paid during the period of restricting payment under Article 56(2) of the Enforcement Decree of the Act by fraud or other improper means. Provided, That this does not include cases where a right to claim payment had already occurred (see Supreme Court Decision 2009Du6476, Aug. 20, 20109).

B) The Plaintiff may not receive any subsidy, etc. for one year from the date of receiving the subsidy, etc. or the date of applying for the payment pursuant to Article 56(2) of the Enforcement Decree of the Act.

As indicated in attached Table 1. The period of restriction on the payment with respect to the new employment promotion subsidy to B is from April 24, 2006 to February 15, 2008; the period of restriction on the payment with respect to the new employment promotion subsidy to D from July 30, 2008 to July 2010, 6, and 3; the period of restriction on the payment with respect to the new employment promotion subsidy to E is from April 25, 2008 to March 10, 2010; the period of restriction on the payment with respect to the new employment promotion subsidy to G is from September 13, 2006 to July 22, 2008 to June 15, 2006 to February 15, 2008 to June 20, 2006 to June 20, 200 to June 36, 200 to June 20, 2007 to the Plaintiff.

C) The time when the claim for payment of the grant subject to the instant disposition occurred

(1) According to Article 16(1) of the Enforcement Decree of the Employment Insurance Act and Article 15-5(1) of the Enforcement Decree of the Employment Insurance Act (wholly amended by Presidential Decree No. 2030, Oct. 17, 2007; hereinafter “former Enforcement Decree”), where a business owner fails to change the employment of his/her workers through employment adjustment during the period of six months after employment or employment by employing or using professional human resources, a small and medium business owner shall be paid a bounty for employment of professional human resources. According to Article 26(1) of the Enforcement Decree of the Act and Article 22-2(1) of the Enforcement Decree of the former Enforcement Decree of the Employment Insurance Act, a business owner shall employ a person in a state of unemployment exceeding three months (29 years or less) counting from the date of applying for employment promotion to an employment security office or other institution prescribed by Ordinance of the Ministry of Labor, and a business owner shall submit an application for new employment promotion subsidy to the employees under Article 25(1) of the Enforcement Rule of the Employment Insurance Act (wholly amended by Ordinance of the Ministry of Labor Ordinance No. 2508).

In full view of the above relevant laws and regulations, the right to claim the payment of each subsidy for workers shall be corresponding to the period of employment when the actual period of employment expires, and it shall be deemed that the payment shall be made ex post facto or quarterly by applying for payment.

(2) As shown in Attachment 2. The order of return to C is related to the promotional subsidy for small and medium enterprises with claims during the period from April 24, 2006 to December 31, 2006, which is within the restriction period of payment, and the order of return to J and K is related to the promotional subsidy for small and medium enterprises with claims during the period from March 24, 2006 to March 31, 207, which is within the restriction period of payment restriction period. The order of return to L is related to the promotional subsidy for new employment for which claims have occurred during the period from March 1, 2007 to February 29, 208, the restriction of return to M and N, and the order of return from January 9, 2007 to December 31, 2007 to December 31, 207 to the new promotional subsidy for the period from March 208, 2007.

D) This part of the Plaintiff’s assertion is without merit.

2) The grounds for the court’s application against the principle of double punishment and the principle of excessive prohibition under the Constitution are the same as the entry in the fifth to fifth to the last half of the judgment of the first instance.

3 Conclusion

The plaintiff's appeal is dismissed.