2010Guhap39144 Revocation of revocation of additional payment for employment maintenance support, etc.

ampamprofung Korea Co., Ltd.

The head of the Seoul Regional Employment and Labor Office Seoul East Site

April 28, 2011

June 2, 2011

1. All of the Plaintiff’s claims are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

Each disposition described in the attached Form 1 Disposition against the plaintiff on November 30, 2009 by the defendant shall be revoked.

1. Details of the disposition;

A. The Plaintiff submitted a report on employment maintenance training, temporary retirement, and temporary suspension of employment as shown in the attached Form 2 employment maintenance plan on the ground that the demand for semiconductors has decreased due to global financial crisis and physical competition erosion, which is an inevitable situation in which the adjustment of employment is inevitable, as a manufacturer of multilateral, transpers, and similar semiconductor elements.

B. As to the period of employment maintenance measures from December 7, 2008 to June 30, 2009, the Plaintiff filed an application for employment maintenance support with the Defendant after reporting the same details as the attached Form 2 employment maintenance measure plan. From July 20, 2009 to October 14, 2009, the Plaintiff applied for the payment of the relevant site-based subsidy, childcare leave subsidy, childcare leave subsidy, and wage for the wage reduction promotion system.

C. On June 26, 2009, the Defendant received the Plaintiff’s report on the illegal receipt of employment maintenance support payment (hereinafter “the instant report”) and conducted an investigation into whether the Plaintiff’s application for employment maintenance support payment is appropriate, such as ascertaining the fact that the Defendant informed a person subject to employment maintenance measures from June 29, 2009 to November 30, 209.

D. On July 3, 2009, July 6, 2009, and on three occasions on July 31, 2009, the Plaintiff notified the Defendant that 10 of the persons subject to employment maintenance measures had been traveling abroad during the period of application for employment maintenance measures as set out in Table 1, and applied for a correction of the case for which 10 of the subsidies were paid, as set out below:

[Attachment 1]

A person shall be appointed.

A person shall be appointed.

E. On August 19, 2009, the Defendant notified the Plaintiff of the fact that he was investigating his illegal receipt of employment maintenance support payment, and that the processing of the Plaintiff’s application for subsidies and grants is delayed.

F. From August 21, 2009 to September 3, 2009, the Defendant conducted an investigation into the Plaintiff’s illegal receipt of employment maintenance support payment during the period from August 21, 2009 to September 3, 2009, and confirmed that the Plaintiff received 15 illegal receipt as shown below [Attachment 2], in addition to 10 cases voluntarily reported by the Plaintiff as shown above [Attachment

[Attachment 2]

A person shall be appointed.

A person shall be appointed.

G. On November 30, 2009, the Defendant received, or attempted to receive, the subsidy from the Plaintiff as stated in the Disposition List No. 1, 2009, on the ground that “the Plaintiff was [Attachment 1] and [Attachment 2], as stated in the Employment Insurance Act, the Plaintiff received, or attempted to receive, the subsidy by ‘the false or any other unlawful means’ as stipulated in Article 35(1) of the Employment Insurance Act.” (hereinafter referred to as “the instant disposition”), as shown in the Disposition List No. 1, 233,270, the order to return the illegally received amount of the employment maintenance support payment to KRW 5,23,233,270, the order to return the illegally received amount of the employment maintenance support payment to KRW 23,421,50, and the decision to additionally collect the amount additionally collected at KRW 23,421,50, ③ the period of restriction on payment (hereinafter referred to as

[Ground of recognition] Facts without dispute, Gap's statements as to Gap's 1 through 4, 9 through 11, 19 through 24, Eul's statements as to Eul's 1, 2, 3, 5 through 9, 11 through 17 (including various numbers), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The non-existence of the grounds for disposition

A) Regarding overseas business trips

① Workers A, B, C, D, H, and R listed in Table 12 Nos. 1, 2, 3, 5, 10 and 12 Nos. 12 of the above [Attachment 1]’s annual business trip, not by the Plaintiff’s instructions, but by voluntary will, at the end of the period of employment maintenance measures for their convenience, or at Sundays, or at the first day of the overseas business trip, for their convenience, cannot be deemed as having been employed during the period of employment maintenance measures for their convenience.

② Although workers B, E, C, F, and G have been traveling abroad during the period of employment maintenance measures for leave of absence as shown above [Attachment 1] Nos. 4, 6, 7, 8, and 9, filing an application for employment maintenance support (temporary retirement) with them only due to the absence of work, not for illegal receipt.

B) Workers I, J, K, L, M, P, Q, T, and U listed on the [Attachment 2]’s annual approval-related [Attachment 2] number 1, 2, 3, 4, 6, 9, 10, 14, and 15, did not perform the work such as approval during the period of employment maintenance measures for training and leave of absence, but did not perform the work such as approval, and stated the approval date on the date of approval within the period of employment maintenance measures. In particular, workers J was in Jeju-do travel from January 19, 209 to January 21, 2009.

C) Workers N andO in the [Attachment 2] Nos. 7, 8, 7, and 8 of the company card use the corporate card for personal purposes, such as meal expenses, while residing in the United States during the period of leave of absence. Workers S in the above [Attachment 2] only used the corporate card with team members in a timely manner during the period of leave of absence, and did not use the corporate card while performing duties during the period of employment maintenance measures.

D) Considering the purpose of the Employment Insurance Act’s positive deception-related employment maintenance support payment system, “any false or other fraudulent means” under Article 35(1) of the Employment Insurance Act shall be deemed to mean the case where a business owner commits deception by affirmative means while recognizing the falsity, illegality, etc.

2) Claim to deviate from the scope of determination of the site pay disposition and payment restriction period

Even though the scope of the decision on the site pay and the limited payment period should be limited to the insured who are not related to the illegal receipt of the order of return, the decision on the site pay and the limited payment period was made to the insured.

(iii) the time limit for processing the application for the subsidy and its assertion;

A. On March 26, 2009, the Defendant issued a land payment disposition for the said application after the lapse of 10 days from the processing period for the 15 applications, including the employment maintenance support payment (temporary retirement) of attached Table 1. In particular, if the Defendant rendered a payment within 10 days from the processing period for the application on the ground of the annual payment of the site for employment maintenance support payment No. 1, 2, and 3 during the above application, it is unlawful for the Defendant to issue a land payment disposition despite the fact that it was able to receive subsidies prior to the instant information.

(d) argument that the maximum extent of the restriction period has exceeded;

Although the period of restriction on the payment of subsidies can be determined within the maximum of one year, the subsidy restriction period was determined within the limit of one year and six months by deviating from the scope.

E) The assertion of deviation and abuse of discretionary power

Even if the Plaintiff received or intends to receive subsidies by fraud or other improper means, in light of the fact that the disadvantages suffered by the decision of the site pay disposition and the restriction period are too large compared to the subsidies that the Plaintiff illegally received or intended to receive, the decision of the site pay disposition and the restriction period among the instant dispositions is a deviation and abuse of discretionary power.

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

1) As to the non-existence of grounds for disposition

A) Regarding overseas business trips

According to the above evidence, the workers in the above [Attachment 1] through 10] annual business trip of the above [Attachment 2] and the above [Attachment 2] 12] annual business trip of the plaintiff during the period of employment maintenance measures, and received travel expenses from the plaintiff for the number of days including the date of departure and entry. The above facts of recognition can be seen as working hours for the business trip included in the series of business trips until the plaintiff goes back from the ordinary place of work to go back to the temporary place of work in order to perform specific official duties under the order of the business owner, and the plaintiff's own application for return or correction of the subsidy to the person who has applied for employment maintenance measures who has applied for overseas business trip within the period of application for employment maintenance support. In light of the above facts, it is reasonable to view that all of the above overseas business trip workers were made to have worked during the period of employment maintenance measures, and it is difficult to view that the plaintiff prepared an overseas business trip of Gap 36 (including No. Ga number) and witness's testimony during the whole business trip of the plaintiff before and after the business trip.

(B) relating to approval

According to the above evidence, each worker in the above [Attachment 2]'s annual statement Nos. 1, 2, 3, 4, 5, 6, 9, 10, 11, 14, and 15 of the above [Attachment 2]'s annual business trip order or the employment maintenance measure period on the pre-employment order or the pre-employment maintenance measure period, approval of the above worker is recognized, and it is reasonable to deem that the approval of the above worker was made on the date indicated. The plaintiff's assertion that it was consistent with the plaintiff's argument that the date was expressed as a day within the employment maintenance measure period, and the testimony of Gap's witness M is not believed.

In addition, workers J alleged that it was during the Jeju-do trip from January 19, 2009 to the 21st day of the same month, but it is not sufficient to recognize that it had been staying in Jeju-do on January 20, 2009, the date on which the J was approved, only by the descriptions of the evidence Nos. 9, 10, and 11, and there is no other evidence to recognize it.

C) Use of corporate cards

According to the above evidence, it is reasonable to view that the above worker N,O used the corporate card overseas during the period of employment maintenance measures, and dealt with it as entertainment expenses and food expenses, etc., and the worker S under 13 of this year used the corporate card during the period of employment maintenance measures and dealt with it as entertainment expenses of the business team. Since the use of the corporate card refers to the expenditure of money and goods related to the business, it seems that the use of the corporate card is supporting the fact of employment, it is reasonable to view that the above worker N,0, and S dealt with the business related to the plaintiff's business at the time of using the corporate card, and contrary to the above evidence Nos. 40, 41-1, and 44 of the evidence No. 1, and the witness S's testimony is not believed.

D) Positive deception

According to the above evidence, the Plaintiff’s use of false and unlawful means in order to provide information on the duty to report on the change of employment plan and receive subsidies from the Defendant on December 4, 2008. The above acknowledged facts include not only the business crisis such as shortage of raw materials, reduction of production and receipt of orders, reduction of sales, inventory cumulative, but also the business scale reduction, business rationalization, change of production methods, and change of organization, etc. within a company, and instead does not reduce the number of employees employed by the business owner, whose adjustment in employment was inevitable, but also the amount paid by the Defendant to support the continued employment of workers. However, it is difficult to view that the Plaintiff did not obtain the Plaintiff’s report on the change of overseas supply of and demand for employment by relaxing the business burden of the business owner, and ultimately failed to obtain the Plaintiff’s report on the change of overseas supply and demand of workers, and thus, the Plaintiff did not appear to have obtained the Plaintiff’s report on the change of employment status and the Plaintiff’s report on the change of overseas supply and demand of workers.

2) Claim to deviate from the scope of determination of the site pay disposition and payment restriction period

It is reasonable to deem that a decision on the site price disposal of subsidies and the period of restriction on payment for a person who has received, or intended to receive, subsidies by fraud or other improper means is a provision prepared in order to achieve the purpose of punishing unjust recipients of subsidies, etc. by failing to or restricting the payment thereof, regardless of whether the person has received, or intended to receive, such subsidies by fraud or other improper means, and to achieve the purpose of preventing unjust payment of subsidies, etc. in the future. Therefore, the scope of the decision on site price disposal and the period of restriction on payment may not be limited only to the part concerning the insured who is the object

(iii) the time limit for processing the application for the subsidy and its assertion;

Article 28 of the Enforcement Rule of the Employment Insurance Act and Article 32 through 34 of the attached Form stipulate the processing period of application, etc. for subsidies for employment maintenance as 10 days, but this is only a provision that provides a decoration, and Articles 5(1) and 6(1) of the Regulations on the Prevention of Illegal Supply and Demand of various Subsidies and Subsidies for Employment Stabilization Activities provide that "the head of a local labor office shall verify the primary supply of subsidies and grants through documents, etc. for business owners deemed to be doubtful by fraudulent or other unlawful means in processing applications for subsidies and grants, and shall directly investigate and verify business owners and workers, if necessary, and if deemed to be illegal recipients, he/she shall directly investigate and verify them, and

In light of the fact that the payment of remaining subsidies and incentives is suspended and the amount of illegal receipt, return order, additional collection, etc. is suspected of being received subsidies by fraud or other improper means in the course of processing applications, etc., it is deemed that the Defendant would be carefully responsible for the handling thereof, even though the processing period is excessive, it cannot be deemed unlawful on the ground that the Defendant rendered a site pay disposition.

In addition, even though the Defendant exceeded the period of processing on the applications made pursuant to the Presidential Decree No. 1,2, and 3, it was eventually attributable to the Plaintiff’s failure to receive subsidies by fraud or other improper means, and thus, it cannot be deemed unlawful for the reason that the Plaintiff received or attempted to receive subsidies by fraud or other improper means.

(iv) argument that the maximum extent of the restriction period has exceeded;

Article 56 (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter referred to as the "former Enforcement Decree of the Employment Insurance Act") provides that "a person who has received or intends to receive subsidies, etc. by fraud or other improper means shall not be paid subsidies, etc. for one year from the date he/she received or applied for subsidies, etc." The plaintiff shall not be granted subsidies, etc. for one year from the date he/she received or applied for subsidies, etc. during the period of employment maintenance measures on February 24, 2009. The plaintiff unfairly received the employment maintenance support payment of a worker A and I who has applied for overseas travel, approval, etc. during the period of employment maintenance measures on August 3, 2009. Therefore, the defendant may make a decision against the plaintiff on the payment restriction, etc. for one year from the date of receipt and the date of application.

5) The assertion of deviation and abuse of discretionary power

Article 35(1) of the Employment Insurance Act provides that "the Minister of Employment and Labor may restrict support or order a person who has received or intends to receive support for employment security by fraud or other improper means to return the amount of subsidy received by fraud or other improper means, as prescribed by Presidential Decree." Article 35(2) provides that "in addition, where a return order is issued, an amount not exceeding five times the amount of subsidy received by fraud or other improper means may be collected in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor." Article 56(1) and (2) of the former Enforcement Decree of the Employment Insurance Act provides that "the Minister of Employment and Labor may order the person who has received or intends to receive the subsidy, etc. by fraud or other improper means to return the subsidy, etc. for one year from the date the person received or attempted to receive the subsidy, etc. by fraud or other improper means." It provides that "The Minister of Employment and Labor shall order the person to return the subsidy, etc. already received or attempted to receive the subsidy, etc. by fraud or other improper means."

Therefore, employment maintenance support payment and other subsidies - site payment order and payment restriction period order and payment restriction period order are not discretionary acts but binding acts. Therefore, the argument that the employment maintenance support payment and payment restriction period decision use the discretion beyond and south of discretion is without merit, on the premise that the employment maintenance support payment and payment restriction period are discretionary acts.

3. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

The assistant judge of the presiding judge;

Judges Calopics

Judges Kim Gin-hee

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.