(영문) 광주고등법원 2011.11.24. 선고 2011누1442 판결

2. Each disposition taken by the Defendant against the Plaintiff on January 13, 2010, such as return of KRW 7,490,320, additional collection of KRW 27,851,60, and restriction on the payment of new employment promotion grants (from January 23, 2009 to October 14, 2010) is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On May 16, 2008, the Plaintiff was established for the purpose of the production and service of educational content, software development and repair business, etc.

B. On November 1, 2008 and January 2, 2009, the Plaintiff employed each of the instant workers as a worker engaging in the Plaintiff’s programming business, and received 7,490,320 won in total from the Defendant during seven times as indicated in the “Support Amount” column from January 23, 2009 to October 15, 200.

A person shall be appointed.

C. However, on January 13, 2010, the Defendant: (a) received the instant incentive in a way that the Plaintiff had been formally arranged by the employment security office and employed only after the interview with the instant workers; and (b) received the instant incentive by false or other unlawful means; and (c) issued a disposition of restricting payment (hereinafter referred to as “each of the instant dispositions”) to the Plaintiff on January 13, 2010, including ① refund of the amount of illegal receipt corresponding to the instant incentive to KRW 7,490,320; (b) additional collection of KRW 27,851,60 as a result, and ③ disposition of restricting payment (from January 23, 2009 to October 14, 2010).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 2, Eul evidence Nos. 2 through 5, and 18, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

Even if the Plaintiff hired the instant workers who applied for the Plaintiff’s job placement procedure without the procedure of referral by the employment security office, etc. after soliciting them to file an application with the employment security office, etc., it cannot be deemed as constituting “the receipt of incentives by fraudulent or other illegal means” under Article 35 of the Employment Insurance Act, and thus, each disposition of the instant case

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

① On October 2, 2008, B sought the Plaintiff Company’s office in order to spread the director of the Plaintiff Company’s D who was known to it, and upon receiving the said D’s recommendation, B visited the Plaintiff Company’s computer and filed an application for registration of job seeking with the Plaintiff Company’s computer (the Defendant’s employment security information network).

② On the 16th of the same month, B visited the Plaintiff Company on the 16th of the same month, and conducted a job-seeking interview with the head of E. After ascertaining the matters of the Plaintiff Company’s application for job-seeking, B explained to B that “it is impossible to employ employees without the procedure of arranging the employment support center’s employment as the relationship with which the Plaintiff Company is employing employees due to the difficulties in management of the Plaintiff Company,” B immediately filed an application for mediation with the Plaintiff Company’s computer.

③ On the 23th of the same month after being arranged by the Employment Support Center on the same day, B had an interview with the Plaintiff Company, and had worked for the Plaintiff Company from November 1, 2008.

① On December 18, 2008, C received interview from the Plaintiff and visited the Plaintiff Company, and conducted a job-seeking interview. During the interview, the interview officer in charge of the Plaintiff Company explained about the employment of a person eligible for the new employment promotion incentive, and C applied for mediation with the Plaintiff Company’s computer.

⑤ On the 30th of the same month after being arranged by the Employment Support Center on the same day, C had an interview with the Plaintiff Company again, and had the Plaintiff applied for registration of job seeking at the Worknet using the Plaintiff Company’s computer under a promise to be employed if he/she becomes a recipient of subsidies.

⑤ Since January 2, 2009, C worked for the Plaintiff Company from January 2, 2009.

7) The Plaintiff, as seen above, was employed as a worker B and C, and was paid a new employment promotion subsidy from the Defendant seven times from January 23, 2009 to October 15 of the same year.

④ According to the business owner’s confirmation submitted by the Plaintiff to the Defendant on December 2, 2008, which was before the Plaintiff applied for the new employment promotion subsidy for B, the route in which the Plaintiff hired B is indicated to be employed after receiving the recommendation from the employment support center upon the Plaintiff’s application for employment promotion. Moreover, following the business owner’s confirmation submitted to the Defendant on July 14, 2009, immediately after the Plaintiff applied for the new employment promotion subsidy for C, the course in which the Plaintiff hired C, having received the recommendation from the employment support center upon the Plaintiff’s application for employment promotion, and interviewed on December 30, 2008.

[Basis] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, 3, Eul evidence 2, 6, 7, 8, 11-1 through 19, and the purport of the whole pleadings

D. Determination

(1) Article 23 of the former Employment Insurance Act (amended by Presidential Decree No. 1039, Jun. 4, 2010; hereinafter the same) and Article 26(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010) provide that the new employment promotion incentive system provides that, under the ordinary conditions of the labor market, those who have difficulties in employment, persons with disabilities, long-term job seekers, and young people, etc. (hereinafter referred to as "persons belonging to the employment vulnerable group") shall be provided with the employment promotion subsidy to the employment security office if they are unemployed after filing an application for employment, they shall be provided with the employment promotion subsidy to those who belong to the employment vulnerable group. Article 26(1) of the Enforcement Decree of the same Act provides that the business owner shall be provided with the employment promotion subsidy to the employment security office only for those who belong to the employment vulnerable group as one of the requirements for receiving the new employment promotion subsidy, and that the employment promotion incentive system means of the employment security office shall be considered by the employment promotion company.

However, there may be cases where a person belonging to the vulnerable class in employment has qualifications and capabilities required by the business owner, regardless of whether the business owner would immediately employ them. Nevertheless, if the business owner received the new employment promotion subsidy through the arrangement, etc. of employment security offices, etc. formally and formally with hiding such fact, it constitutes a case where the business owner received the new employment promotion subsidy by means of the false or other unlawful means under Article 35 of the former Employment Insurance Act. If an administrative agency takes unfavorable administrative disposition against the relevant business owner for such reason, such as recovery and disposition, etc., and files an appeal seeking cancellation of such disposition, the business owner bears the burden of proving that the business owner received the new employment promotion subsidy through the procedure of intermediation, etc., even though he/she had the intent to immediately employ the persons belonging to the vulnerable class in employment prior to the referral of employment security offices, etc.

(2) In light of the above facts, first of all, in the instant case, the Plaintiff, after having interviewed B and C, had no intention to immediately employ them, and had the intent to employ them only when they can receive a new employment promotion subsidy through an arrangement by the employment support center. Thus, just because the Plaintiff underwent an interview with B and C, it cannot be readily concluded that the Plaintiff immediately became final and conclusive solely on the ground that the Plaintiff had undergone an interview with B and C, and that the Plaintiff had an intention to employ the instant workers. Accordingly, the burden of proving that the Plaintiff Company had an intention to immediately employ the people belonging to the vulnerable class prior to the arrangement by the employment support center is borne by the Defendant. However, it is difficult to find any evidence to acknowledge this.

Then, even if the Plaintiff had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had

Therefore, each of the dispositions in this case taken by the plaintiff company under the premise that it received a new employment promotion subsidy from the defendant without disclosing such fact to the defendant even though it actually interviewed B and C before the referral of the employment support center constitutes "any false or other unlawful means" under Article 35 of the former Employment Insurance Act.

3. Conclusion

Thus, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so it is so decided as per Disposition by cancelling the judgment of the court of first instance and accepting the plaintiff's claim.