2010Guhap4483 Order to return unemployment benefits and revocation of disposition of revocation of additional collection

A

The President of the Gwangju Regional Labor Agency

April 14, 2011

April 28, 2011

1. The Defendant’s order for return and disposition for additional collection that the Plaintiff rendered on September 27, 2010 shall be revoked. 2. The Plaintiff’s remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

The Defendant’s decision on September 27, 2010 to restrict the payment of unemployment benefits, to return unemployment benefits, and to additionally collect them shall be revoked.

1. Details of the disposition;

○ Each job-seeking benefits received by the Plaintiff by submitting an application for unemployment recognition to the Defendant are as follows.

A person shall be appointed.

○ On August 4, 2010, the Plaintiff visited the Gwangju Employment Center under the Defendant’s control to receive job-seeking benefits out of unemployment benefits, and at the time, the employee in charge of the Defendant’s side entered the Plaintiff as the representative director of the Agricultural Company B Limited Company B (hereinafter “B”) on July 21, 2010 on the screen of the computerized inquiry, and confirmed the fact that the Plaintiff was registered as the representative of B.

○ Accordingly, on September 27, 2010, the Defendant rendered a decision to restrict the payment of unemployment benefits, to return, and to additionally collect the amount to be paid by the Plaintiff on the ground that “A person who was appointed as the representative director of an agricultural company B as of July 21, 2010 during receiving unemployment benefits from May 17 to July 26, 2010 constitutes illegal receipt of unemployment benefits.” The Defendant rendered a disposition of KRW 1360,00 (240,000 to be unlawfully paid = six days (240,000 to July 21, 2010) + additionally collecting KRW 240,000 + additionally collecting KRW 240,000 + 880,000 for the amount to be returned due to non-payment + 222 days (hereinafter referred to as “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 8 and 9, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

First, although the Plaintiff was registered as the representative director and completed the business registration as the B’s representative, the Plaintiff is expected to start the business around March 201, and the Plaintiff did not have any income due to the lack of the benefits received from B, and thus, the Defendant asserted that the instant disposition was rendered by deeming otherwise.

Secondly, at the time of visiting the Gwangju Employment Center on July 26, 2010, the Plaintiff notified the Defendant C of the registration and business registration of its representative director, and despite the fact that C, considering the actual commencement date of business and the Plaintiff’s unemployment benefits payment period, the Plaintiff responded that there is no problem in job-seeking benefits and received KRW 1,120,000 on the day’s job-seeking benefits on the job-seeking benefits, the instant disposition that the Defendant changed the previous position as seen above and concluded to the effect that the Plaintiff’s above receipt of job-seeking benefits constitutes an illegal receipt, is unlawful,

B. Determination

(1) Facts of recognition

On January 20, 2010, the Plaintiff voluntarily retired from the position of the head of the branch of the Bosung-gun Branch, and then received job-seeking benefits for three months on May 17, 2010 for the first time. (B) The Plaintiff was introduced through the branch during the job-seeking activities, B, which was the processing, manufacturing, and distribution sales business of agricultural and livestock products. However, the Plaintiff was established on November 13, 2008 but did not carry out substantial business activities such as delayed construction of the company's factory building. As of December 31, 2009, the amount of liabilities and the total amount of capital on the standard comparison table and the total amount of capital was 30 million won. The Plaintiff was appointed on July 21, 2010, changed the representative of B under the name of the Plaintiff as the representative director under the tax-free business registration certificate, and did not receive benefits from the Plaintiff as the actual business relationship.

C. On July 26, 2010, at the Gwangju Employment Center, the Plaintiff sent notice of the above business registration to C at the time of applying for job-seeking benefits, and C attempted to verify the Plaintiff’s business registration, but did not confirm the business registration on the screen at the time of computer inquiry.

(D) Meanwhile, at the time, C was asked at the time to commence the Plaintiff’s business in a correct manner, and the Plaintiff respondeded to the commencement of the business (round March 201, 201) at the time, and C told the Plaintiff that “at the next time, C had a business registration certificate issued to the Plaintiff.”

E. After the above dialogue between the Plaintiff and C, the Plaintiff received job-seeking benefits of KRW 1.120,000 on the day. As such, when the Plaintiff visited the Gwangju Employment Center to receive job-seeking benefits on August 4, 2010, the Defendant’s person in charge was replaced, and the person in charge thereof confirmed the Plaintiff’s business registration on July 21, 2010, the Plaintiff’s payment of job-seeking benefits was suspended and the confirmation of whether the Plaintiff constitutes an illegal receipt was requested to the Gwangju Employment Center’s illegal receipt.

[Ground of recognition] Evidence No. 4 (Evidence No. 7) through 6, witness C's partial testimony, the purport of the whole pleadings

(2) Determination

A) As to the Plaintiff’s first argument, Article 44(1) of the Employment Insurance Act (hereinafter “Act”) provides that job-seeking benefits shall be paid to an eligible recipient on the date of obtaining recognition of unemployment from the head of an employment security office among the days of unemployment. As such, if an eligible recipient is employed, the recognition of unemployment may not be granted. Article 92 Subparag. 6 of the Enforcement Rule of the Act provides that where an eligible recipient has registered his/her business in accordance with tax-related Acts (excluding cases where it is proved that an eligible recipient has not reported his/her business suspension, etc. even if he/she is registered as a business operator, and cases where he/she has not

In light of the above facts, even if B did not start a real business and the Plaintiff did not have any income due to the relationship in which B was not paid the benefits, etc. from B in the preparation process, the Plaintiff did not prove that it was a case where it was proved that B had not actually engaged in the real business, such as business registration and reporting of business suspension, since the Plaintiff had completed business registration under the tax law as the representative of B on July 21, 2010, and that B was not a company for the purpose of real estate leasing business, the Plaintiff cannot obtain unemployment recognition since its business registration was completed on July 21, 2010, because B was not a company for the purpose of real estate leasing business.

Therefore, among the instant dispositions, the instant disposition that deemed that the Plaintiff, a qualified recipient, was employed from July 21, 2010, was legitimate.

B) As to the plaintiff's second argument

1) In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's statement of opinion is justified and there is no cause attributable to the individual; third, the administrative agency should have conducted any act based on the individual's statement of opinion; fourth, the administrative agency's disposition contrary to the above statement of opinion should lead to an infringement of the individual's interest in trust; fourth, if any administrative disposition satisfies these requirements, it is an act contrary to the principle of the protection of trust unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decisions 98Du19070, Mar. 9, 199; 2004Du466, Jun. 9, 2006).

On the other hand, in determining whether there was a public opinion statement of an administrative agency, it is not necessarily a formal sense of authority in the administrative organization, but a substantive determination should be made in light of the person in charge’s organizational position and duties, specific circumstances leading to the relevant speech and behavior, and the other party’s trust possibility (see, e.g., Supreme Court Decision 96Nu18380, Sept. 12, 1997).

2) In full view of the legal principles as seen earlier and the following circumstances revealed by the fact of recognition, the order of return and the decision of additional collection during the instant disposition are unlawful as an act contrary to the principle of trust protection.

① In light of the fact that the Plaintiff’s notification of business registration as seen above was made to C, and the question and answer related to B’s starting date of business and then the Plaintiff received job-seeking benefits, the Defendant (C in charge of the application for job-seeking benefits at the Gwangju Employment Center under the Defendant’s control) may be deemed to have expressed a public opinion that the Plaintiff’s supply and demand of job-seeking benefits is possible at the time of July 26, 2010, where the fact of the Plaintiff’s business registration was not verified on the computer inquiry screen).

② As above, insofar as Defendant C responded that there is no problem in receiving the Plaintiff’s job-seeking benefits, it cannot be said that there is any cause attributable to the Plaintiff’s trust. ③ Moreover, the Plaintiff trusted the Defendant’s public opinion and, based on this, prepared and submitted an application for recognition of employment insurance recognition on July 26, 2010, received job-seeking benefits of KRW 1120,000 on the day of receiving the job-seeking benefits (in fact, only the Plaintiff stated the application and received the money that the Defendant paid).

④ However, unlike the above public opinion, the Defendant’s business registration as the representative of B, who had already been notified at the time of the supply and demand date, was retroactively registered as of July 21, 2010, and accordingly, issued the instant disposition to the effect that the Plaintiff’s receipt of job-seeking benefits as of July 26, 2010 is an illegal receipt of job-seeking benefits on the ground that it was registered as of July 21, 2010. As such, the Plaintiff’s restriction on the payment of benefits in the future and refund of KRW 1.20,000 won of the job-seeking benefits received as of July 26, 2010, as well as additional collection = 240,00 won ( = six days from July 21, 2010 to July 26, 2010) x 40,000 won, and thus, the Plaintiff’s trust may be deemed to have been infringed.

⑤ Moreover, it is difficult to find any circumstance to deem that the revocation of the instant disposition is likely to seriously undermine the public interest, legitimate interests of third parties, and interests of third parties.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed. It is so decided as per Disposition.

The presiding judge, judge and police officer;

Judges Mobileho

Judges Park Jae-young

1) It seems that the Plaintiff’s business registration is due to certain time until it is registered on the relevant computer network.

2) In relation to this, the Defendant’s application for recognition of employment insurance unemployment on July 26, 2010, according to the evidence Nos. 8,

in light of the fact that the Plaintiff stated “no” in the column for confirmation of the start of a business operator’s own business upon preparation and submission;

It is argued that the plaintiff cannot be viewed as notification of business registration. However, it is argued that the plaintiff cannot be viewed as notification of business registration.

On July 21, 2010, after hearing C's answer that there is no problem in receiving job-seeking benefits, and applying for job-seeking benefits formally. B

Job-seeking benefits due to B's failure to engage in business activities as a representative of the business entity, etc.

It seems that there is no business registration that can be restricted.

In addition, even though the plaintiff had already registered his/her business, the current status of the plaintiff's business registration is not verified electronically.

As such, the C had been paid only before the registration after confirming whether the C had been registered in order to wait for lock.

one-month payment is made in full.