(영문) 인천지방법원 2014.10.16.선고 2014구합1790 판결

On January 9, 2014, the Defendant revoked a decision to restrict the payment of unemployment benefits, to return unemployment benefits, and to additionally collect unemployment benefits against the Plaintiff.

Reasons

1. Details of the disposition;

A. On September 10, 2009, the Plaintiff has been working for B Co., Ltd. (hereinafter “instant company”).

B. The Plaintiff filed an application for recognition of eligibility for employment insurance benefits with the Defendant on the ground that he/she retired from employment on January 15, 2013 at the instant company. Upon recognition of eligibility for payment of KRW 150 days for the fixed benefit payment day, KRW 34,992 for job-seeking benefits, and KRW 5,248,770 for six times from February 25, 2013 to July 24, 2013, the Plaintiff received payment of KRW 5,248,70 for the total amount of job-seeking benefits from February 25, 2013. Upon receipt of the instant company’s notification that the instant company employees were unlawfully receiving unemployment benefits, the Defendant investigated the business employees of the instant company on the ground that the Plaintiff applied for unemployment benefits on January 9, 2014, on the ground that he/she applied for unemployment benefits by applying for employment insurance even during the instant company’s continuous work (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 3, Eul evidence 1, 2 and 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff continued to work in the company of this case in order to receive overdue benefits at the time of recommendation, and acted as if other members were not retired from office. The amount that the company of this case deposited in the plaintiff passbook was paid as above, and the amount that the company of this case paid to the plaintiff passbook was not in attendance when other employees are discovered or seen, and thus, it cannot be deemed that the plaintiff did not work in the company of this case causing interference with employment. Thus, the disposition of this case is unlawful due to misunderstanding of facts.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Pursuant to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the Employment Insurance Act, when a recipient has provided labor during the period subject to the verification of unemployment, he/she shall report to the head of an employment security office, stating the fact in the first application for the verification of unemployment that was submitted on the unemployment recognition date after the date he/she provided labor. Pursuant to Article 61(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits. According to Article 61(2) of the Employment Insurance Act, the act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Employment Insurance Act constitutes “the act of receiving unemployment benefits by fraud or other improper means” under Article 62(1) of the Employment Insurance Act and Article 105(1) of the Enforcement Rule of the Employment Insurance Act. In such case, the head of

On the other hand, Article 47(1) of the Employment Insurance Act and Article 92 of the Enforcement Rule of the Employment Insurance Act provide that with respect to whether the provision of labor constitutes employment, where the provision of labor is set at a certain working hour for not less than 60 hours a month (including cases where the prescribed working hours are set at least 15 hours a week) and provides labor, where a daily worker under Article 2(6) of the Employment Insurance Act provides labor, regardless of the name such as wages, etc. in return for the provision of labor, where a daily worker receives not less than a daily amount of job-seeking benefits regardless of the name such as wages, etc. in return for the provision of labor, the case where it is deemed difficult to be employed on a regular basis by engaging in commercial, agricultural, etc., including an unpaid domestic worker, or by providing labor to another person, and other cases where it is recognized that a regular employment is conducted by social norms. Thus, the scope thereof is wide, and the provision of labor under Article 69(2) of the Enforcement Decree of the Employment Insurance Act does not require the same degree.

Of course, it includes not only the case to the extent that it does not reach the employment (e.g., unpaid or temporary position) but also the considerable extent that is likely to be likely to be considered or problematic. Whether to provide labor or be employed should be determined in light of the nature and contents of the work performed based on the above provision, price, repetition and continuity, etc.

2) The following facts are acknowledged according to the purport of the entire statement and arguments of the health unit return to the instant case, Gap evidence Nos. 2, Eul evidence Nos. 5 through 7, 15 and 16.

① 이 사건 조사과정에서 이 사건 회사에서 근무했던 다른 종업원 C(2013. 3. 25.부터 2013. 6.경까지 근무), D(2012, 9. 14.부터 2013. 6. 30.까지 근무), E(2012. 5. 21.부터 2013. 6. 30.까지 근무), F(2012. 8.경부터 2013. 6.경까지 근무)는 원고를 부장으로 호칭하였고, 이들이 근무하는 기간 동안 원고도 계속 같이 근무하면서 재단일과 외주일을 하였으며, 나중에 원고가 실업급여를 받고 있었다는 사실에 모두 깜짝 놀라서 이야기한 적이 있고 원고가 급여를 못 받아서 투쟁하는 것은 한 번도 본 적이 없다.고 진술하였다.

② During the investigation process of the instant case, the Plaintiff continued to reside in the company with a large monthly wage. As the Plaintiff, C, G, and H appears to have continued to work while staying in the company of this case. After that, C, G, and H appears to have been trying to work while staying in the company of this case. After that, C, G, and H stated that the Plaintiff had been staying in the J company located in Busan City and continued to work in the company of this case.

③ In the process of the instant investigation, K, the actual representative of the instant company, reported the closure of business on or around August 4, 2013. The Plaintiff stated that “The Defendant’s employee was working for the J company on or around September 4, 2013 for the purpose of the illegal receipt of unemployment benefits, and thus, the Plaintiff continued to work for the company as well as for the purpose of receiving the smuggling’s wage. L Company operated by the president was practically taking over the instant company on or around July 1, 2013 under the condition that K would assist in its business. From the J company located in Busan City, Busan, the Plaintiff was working for the instant company on or after July 1, 2013. The Plaintiff stated that the Defendant’s employee was working for the J company on or around September 4, 2013 for the purpose of the illegal receipt of unemployment benefits.” The Plaintiff submitted to the Defendant’s application for unemployment recognition on six occasions, without being described in the schedule of unemployment recognition and employment (hereinafter referred to as “the schedule of employment”).

3) According to the above facts, it is reasonable to view that the Plaintiff provided labor in the instant company or the J company during the period subject to the recognition of unemployment, and received job-seeking benefits without reporting it to the Defendant. Thus, the Plaintiff is a person who received job-seeking benefits by fraud or other improper means. The Plaintiff’s assertion on a different premise is without merit.

3. Conclusion

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