2016 old group 51637 Revocation of a decision to return employment subsidies

Jin Development Co., Ltd.

The Secretary of the Seoul Regional Employment and Labor Office site

March 25, 2016

April 8, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s order to return KRW 7,295,400 to the Plaintiff on December 1, 2015 is revoked.

1. Details of the disposition;

A. On January 1, 2013, the Plaintiff, a company running a building cleaning business, etc., has concluded a cleaning service contract with the US military unit (ammp humphys) stationed in Pyeongtaek-si and provided cleaning services.

B. On January 1, 2013 and January 1, 2014, the Plaintiff entered into an employment contract with A and B with the term of one year, and both A and B entered into a cleaning service in the military unit described in the foregoing paragraph. On January 1, 2015, the Plaintiff entered into an employment contract without a fixed period between A (64 years of age) and B (55 years of age). On April 23, 2015, the Plaintiff notified that the contract with A and B cannot maintain the employment status after the termination of May 31, 2015, and accordingly, A and B retired on May 31, 2015.

D. Around June 2015, the Plaintiff filed an application with the Defendant for a subsidy for employment of the aged aged 60 or older (the first quarter), and the Defendant paid KRW 7,295,400 to the Plaintiff on June 5, 2015 as a subsidy for employment of the aged aged 60 or older (the first quarter).

E. On December 1, 2015, the Defendant issued an order to return KRW 7,295,400 (hereinafter “instant disposition”) paid to the Plaintiff on the ground that the Plaintiff applied for subsidies for employment of the aged aged 60 years or older and received unjust payments, notwithstanding the fact that the Plaintiff was unable to receive subsidies for employment of the aged aged 55 years or older (hereinafter “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, under a contract with the U.S. military unit located in Pyeongtaek-si, cleaned the building of the U.S. military unit from January 1, 2013 to May 31, 2015, and upon the termination of the contract with the U.S. military unit, the contractual relationship with the workers A and B is terminated. The termination of an employment contract with the original contractor cannot be deemed as a case where the Plaintiff, upon the termination of the contract with the original contractor, constitutes a case where the worker, as prescribed by Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act, was retired from employment through an adjustment in employment. Nevertheless, the Defendant’s instant disposition based on

(b) Related statutes;

Article 23 of the Employment Insurance Act (Support for Promotion of Employment of Aged, etc.) The Minister of Employment and Labor may, as prescribed by Presidential Decree, provide necessary support to employers who newly employ the aged, etc. or take measures necessary for their employment stability in order to promote the employment of those whose normal conditions of the labor market, such as the aged, etc. (hereinafter referred to as "seniors, etc.") who are particularly difficult to find employment.

Article 35 (Restrictions, etc. on Support due to Illegal Acts)

(1) The Minister of Employment and Labor shall not grant any person who has received or intends to receive support for employment security and vocational ability development programs under this Chapter by fraud or other improper means, which has not been paid or which he/she intends to receive, restrict the payment of the subsidy, as prescribed by Presidential Decree within the extent of one year, and order him/her to return the subsidy received by fraud or other improper means.

Article 25-2 of the Enforcement Decree of the Employment Insurance Act (Subsidies for Employment of Elderly People aged 60 or older)

(1) Pursuant to Article 23 of the Act, the Minister of Employment and Labor shall pay a subsidy for employment of aged 60 or older persons to employers of business who meet all the following requirements

1. The workplace shall have no set retirement age;

2. The ratio of the average monthly number of workers aged 60 years or older who are employed for not less than one year as of the end of each month for the average monthly number of workers of the relevant business every quarter shall be at least the ratio determined and publicly announced by the Minister

3. The employer shall not be a person who has received incentives for employment promotion of the aged under Article 18 of the Addenda to the partially amended Enforcement Decree of the Employment Insurance Act (Act No. 22603) at least once at the time of the application for subsidies for employment of the aged aged 60 years or older,

(2) Where an employer has retired from employment of the aged 5 years or older through employment adjustment during the period from three months before applying for subsidies for employment of elderly people aged 60 years or older (hereinafter referred to as "subsidies for employment of elderly people aged 60 years or older") to six months after applying for such subsidies, no subsidies for employment of elderly people aged 60 years or older shall be paid.

(3) The amount of subsidies for employment of elderly persons aged 60 or older shall be calculated by multiplying the amount publicly notified by the Minister of Employment and Labor in consideration of the labor market conditions by the number of workers aged 60 or older who are employed in excess of the ratio publicly notified by the Minister of Employment and Labor pursuant to paragraph (1) 2: Provided, That the total amount of subsidies that an employer is entitled to quarterly payments shall not exceed the amount calculated by multiplying the amount publicly notified by the Minister of Employment and Labor in accordance with the main sentence by the number equivalent to 20/100 (10/1

(4) In calculating the number of workers to pay subsidies for employment of seniors aged 60 years or older, daily workers and persons falling under subparagraphs 2 through 5 of Article 10 of the Act shall be excluded.

(5) Matters necessary for applying for and paying subsidies for employment of seniors aged 60 years or older shall be prescribed by Ordinance of the Ministry of Employment and Labor.

(1) Pursuant to Article 35(1) of the Act, the Minister of Employment and Labor shall not grant any person who has received, or intends to receive, any subsidy under Articles 17, 19, 22, 24 through 26, 28, 29, 33, 35 through 37, 37-2, 38, and 55 by fraud or other improper means, the unpaid amount of the subsidy or the subsidy he/she intends to receive, and shall also order him/her to return the subsidy already received by fraud or other improper means.

1) Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act provides that “Where an employer has retired from employment by way of employment adjustment for the aged aged 5 years or older through an application for subsidies for employment of the aged aged 60 years or older pursuant to paragraph (1) from employment to six months after the application therefor, the employer shall not be paid the subsidies for employment of the aged aged 60 years or older.”

2) On January 1, 2015, the Plaintiff entered into a non-fixed-term employment contract with A (64 years of age) and B (55 years of age). On April 23, 2015, the Plaintiff notified the termination of the contract that “it is impossible to maintain the employment status after the contract with the original contractor is terminated on May 31, 2015.” On May 31, 2015, A and B were retired on May 31, 2015. The Plaintiff did not notify the Defendant of the fact that he/she retired from employment of A and B, and filed an application for the aged employment subsidy of 60 years of age or older with the Defendant (1 quarter) and received KRW 7,295,400 as the aged employment subsidy (1 quarter) from the Defendant around June 2015.

3) First, we examine whether the termination of an employment contract with A and B upon the termination of the contract with the principal contractor constitutes a case where the Plaintiff has retired from employment through employment adjustment.

The term "employment adjustment" means the adjustment of the number of employees due to the reduction of the scale of business, the closure or conversion of business due to business fluctuations, changes in industrial structure, etc. (see, e.g., Article 21(1) of the Employment Insurance Act). In this case, in the absence of a new circumstance that the worker wishes to leave his/her job on his/her own, it is reasonable to view that the situation on the part of the plaintiff, i.e., the occurrence of the circumstances requiring the adjustment of employment due to the termination of the contract by the original contractor, i.e., the worker's severance from employment due

4) Next, we examine whether the Plaintiff constitutes a person who received subsidies for employment of senior citizens aged 60 years or older by fraud or other improper means.

"False or other fraudulent means" means active and passive acts that could affect the decision-making on the grant of subsidies, such as deceptive schemes, even though it is not possible to receive subsidies through normal procedures.

The following circumstances revealed by the evidence, namely, ① the system of employment subsidy for the aged aged 60 or older, requires the employment stability of the aged by providing measures to support the employers who actively employ the aged aged aged, etc. who are aged 60 or older due to the extension of the average life expectancy of the people and the aging society and the aging of the society, and thus, it is necessary to secure employment stability of the aged. In addition, Article 25-2 of the Enforcement Decree of the Employment Insurance Act was newly introduced on January 13, 2012; ② Article 25-2(2) of the Enforcement Decree of the Employment Insurance Act aims to strengthen the purpose of employment subsidy for the aged and prevent abuse thereof by preventing the aged from reducing the employment period; ③ Article 43 of the Enforcement Rule of the Employment Insurance Act provides that the employers who intend to receive the employment subsidy for the aged aged aged 60 or older shall submit to the Defendant a list of workers aged 60 or older with the employment date and employment contract for the aged aged 60 or more years, and if the Plaintiff did not notify the Defendant of the employment subsidy to the Defendant.

5) Therefore, the Defendant’s instant disposition based on the same premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Do-young