(영문) 서울고등법원 2019.8.30. 선고 2019누36591 판결

The Defendant’s decision on August 7, 2017 to restrict the payment of unemployment benefits, to order the return of unemployment benefits, and to additionally collect them shall be revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked. The plaintiff's claim corresponding to the above revocation is dismissed.

Reasons

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought revocation of the decision on restriction on the payment of unemployment benefits, the return order, and the additional collection, and the first instance court accepted the part of the claim for revocation of the decision on additional collection, and dismissed all the remainder of the claim. Since only the Defendant filed an appeal against the part against which the Defendant lost, the scope of the judgment of this court is limited

2. cite the judgment of the court of first instance

The reasoning for the judgment of the court on this case is as follows, and the reasoning for the judgment of the court of first instance is as stated in the reasoning of the court of first instance except for the following additional determination as to the part written by the defendant, emphasizing at the trial of the court of first instance. Thus, this Court cites it pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (other matters asserted by the defendant in the trial of first instance, and even if all the evidence presented in the court of first instance are examined, the judgment of the court of first instance that rejected such argument by the defendant

○ The last 3th of the judgment of the first instance court is that the 100% of the 100% of the 100% of the 100% of the 100% of the 100% of the additional collection.

According to Articles 40(1), 42, and 43(1) of the Employment Insurance Act of 14th half of the judgment of the first instance, "the Employment Insurance Act of 14th," and Article 40(1) and 42 of the Employment Insurance Act of 199 and Article 43(1) of the former Employment Insurance Act (amended by Act No. 16269, Jan. 15, 201; hereinafter the same).

○○ 6th of the first instance judgment, 17th of 17th (Article 49 of the former Employment Insurance Act), "(Article 49 of the former Employment Insurance Act)" is "(Article 49 of the former Employment Insurance Act)." 6th of the first instance judgment, "Enforcement Decree of the Employment Insurance Act" is "former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 29913, Jun. 25, 2019)."

【Supplementary Decision】

A. The defendant's argument

The Plaintiff does not fall under any subparagraph of Article 105(1) of the Enforcement Rule of the Employment Insurance Act that provides the grounds for exemption from additional collection, or Article 105(2) of the Enforcement Rule of the Employment Insurance Act that provides for the grounds for exemption from additional collection, and thus, the Defendant does not have a duty to exempt or reduce additional collection against the Plaintiff. Accordingly, the instant disposition is justifiable and reasonable in accordance with the content and purport of the relevant statutes. In addition, the instant disposition is a disposition that is appropriate for the purpose of operation of the Employment Insurance Fund and is appropriate as a sanction against the Plaintiff’s wrongful act, and is a disposition necessary to achieve the public interest more than the benefit that the Plaintiff was infringed, and is not a disposition that goes beyond the bounds of discretionary authority.

B. Determination

1) Even if the criteria for punitive administrative disposition are prescribed in the form of Ministerial Ordinance, it has no effect to externally bind citizens or courts since it is nothing more than setting the administrative agency's internal business rules, and whether the pertinent disposition is lawful or not must be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes, not only the above disposition standards, but also the relevant disposition standards. Thus, the pertinent disposition cannot be deemed legitimate immediately, and whether it conforms to the provisions and purport of the relevant Acts and subordinate statutes should be determined individually and specifically (see, e.g., Supreme Court Decisions 94Nu14148, Oct. 17, 1995; 2007Du6946, Sept. 20, 2007).

2) Article 105(1) of the Enforcement Rule of the Employment Insurance Act provides that the amount additionally collected pursuant to Article 62(1) shall be 100/100 of the amount of job-seeking benefits paid by fraud or other improper means; the amount of job-seeking benefits paid by a person who has been a daily worker at the time of his/her most recent departure from employment, where the number of working days under Article 40(1)5 of the Employment Insurance Act exceeds three days, 30/100 ( Subparagraph 1) and 1 of the same Article, and where the person who has been a daily worker at the time of his/her recent departure from employment, has faithfully complied with an investigation into unlawful acts; and where the person has promised to pay the amount immediately in writing, the amount shall be calculated by multiplying the amount of unlawful acts by 60/100 ( Subparagraph 1). Notwithstanding paragraph (1) of the same Article, Article 80 of the Enforcement Rule of the Employment Insurance Act provides that where the head of an employment security office fails to file a report on unemployment recognition during the period for which he/she reported additional collection.

3) However, in light of the following circumstances as seen earlier, particularly the Plaintiff’s legitimate amount of job-seeking benefits exceeds the amount of job-seeking benefits actually received by the Plaintiff, additionally collecting an amount equivalent to 100/100 of the amount of job-seeking benefits paid by the Plaintiff against the Plaintiff is reasonable to deem that even if considering the content and purport of the relevant statutes, such as the Employment Insurance Act, and the purpose of operating the Employment Insurance Fund, and the need for strict enforcement of applicable laws relating to additional collection, etc., it is unreasonable to deem that the Plaintiff’s aforementioned assertion is an excessive sanction compared

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is justified on the grounds of its conclusion, the defendant's appeal is dismissed on the grounds of its merit. It is so decided as per Disposition.