2011Guhap13379 Order to return employment maintenance support payment and revocation of a decision to additionally collect additional collection, etc.

Dae Young LbnB Co., Ltd.

The Commissioner of the Central and Central Regional Labor Agency;

March 8, 2012

April 5, 2012

1. On April 22, 2011, the part exceeding KRW 20,817,654 of the order to return KRW 28,282,960 granted by the Defendant to the Plaintiff, and the part exceeding KRW 31,449,086 of the decision to additionally collect KRW 44,219,730, among the order to return KRW 20,81.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant.

The Defendant’s order to return KRW 28,282,960 granted to the Plaintiff on April 22, 2011 and the decision to additionally collect KRW 44.219,730 shall be revoked.

1. Details of the disposition;

A. The Plaintiff, as a company that manufactures and sells the cold and hot water conditioning, etc., applied for employment maintenance support for the above period to the Defendant on August 2005, April 2006 through June, 1006, October, 12, 207, January 4, 5, 1007, October, 11, 12, January 3, 2008, January 3, 2008, April, 4, 8 through May, 5, 2009, January 8, 8, November 8, 11, and December 12, 209, and received a total of KRW 587,945,490 from the Defendant.

B. The Defendant, upon the notice of the Board of Audit and Inspection, investigated the Plaintiff’s workplace from July 7, 201 through visiting the Plaintiff, etc., and on April 22, 2011, determined to additionally collect the amount of subsidies for maintaining employment (hereinafter “instant order”) equivalent to 44,219,730 won in total, as indicated in the attached Table 1 “the amount of subsidies for maintaining employment” as stated in the attached Table 1, on the ground that the Plaintiff reported the Defendant’s false fact that the Plaintiff suspended his/her business without suspending his/her overseas business for the whole or any part of the period specified in the attached Table 1 (hereinafter “instant order”) and received the Defendant’s subsidies for maintaining employment (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, Eul evidence Nos. 1 to 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that all or part of the disposition of this case is illegal for the following reasons.

1) Non-existence of grounds for disposition

The instant workers were forced to travel abroad during the period of employment maintenance measures due to the urgency and continuity of their work, or continued to work during the period of employment maintenance measures due to the failure to complete the work during the period of employment maintenance measures, and thus, the Plaintiff did not engage in an act with the intent to unlawfully receive the employment maintenance support payment. Thus, the instant workers’ work during the period of employment maintenance measures is merely a neglect of the Plaintiff’s duty to report on the part of the plan for employment maintenance measures reported by the Plaintiff to the Defendant, and it does not constitute the Plaintiff’s receipt of the employment maintenance support payment by fraud or other improper means. Therefore, the instant disposition is unlawful.

2) Violation of the scope of disposition

Even if the Plaintiff received subsidies for maintaining employment, the amount refunded and the amount additionally collected should be calculated on the basis of the subsidies for the actual working days during the period of employment maintenance measures (business suspension). However, the Defendant calculated the total amount of subsidies for retaining employment paid by the instant workers during the month in which they actually worked, and calculated the amount additionally collected based on such amount. As such, the part of the refund and the amount additionally collected based on the instant disposition exceeds KRW 52,026,616, calculated on the basis of the actual working days during the period of employment maintenance measures is unlawful.

(b) Related statutes;

Attached Form 2 is as shown in the relevant statutes.

C. Determination

1) As to the non-existence of the grounds for disposition, subsidies for employment maintenance measures (suspension of business) are determined in consideration of the period of suspension under the plan for employment maintenance measures (suspension of business) reported to the Defendant by the employer in advance, it is reasonable to deem that the application for employment maintenance support to the Defendant as if the content of the plan was modified and applied for suspension of business according to that plan constitutes “any false or other unlawful means” under Article 35 of the Employment Insurance Act (see, e.g., Supreme Court Decision 2001Du2270, Sept. 5, 2003). Furthermore, sanctions against the non-existence of administrative regulations are imposed merely on the objective fact of violation of administrative regulations to achieve the administrative purpose, and thus, it may be imposed even if there is no intentional or negligent act on the offender, barring any special circumstances such as there is no negligence in neglecting the duty of the offender (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003).

In light of the following circumstances revealed by the facts and the purport of the entire argument as seen earlier, that is, there is no evidence to deem that there was any inevitable circumstance to deem that the instant employee had to go through an overseas business trip during the period of employment maintenance measures (suspension of business), and that there was no circumstance that the Plaintiff could not report the modification of the content of the plan for employment maintenance measures (suspension of business) regarding the said overseas business trip. In addition, when comprehensively considering the period and frequency of the instant employee’s work during the period of employment maintenance measures (suspension of business), and the scale of the employment maintenance support payment received by the Plaintiff, the Plaintiff may be deemed to have reported false facts without justifiable grounds and received the employment maintenance support payment from the Defendant. Accordingly, the Plaintiff’s act constitutes a case where the Plaintiff received the employment maintenance support payment by false or other unlawful means). Accordingly, the Plaintiff’s aforementioned

2) As to the allegation of illegality regarding the scope of disposition

The scope of "amount subsidized by fraud or other improper means" under Article 35 (1) and (2) of the former Employment Insurance Act (amended by Act No. 1037 of May 31, 2010) shall be construed as "amount subsidized by fraud or other improper means."

According to Articles 19(1)1 and 2, 20(2), and 21(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21928, Dec. 30, 209); and Articles 25 and 29 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010), as alleged by the Defendant, subsidies for employment maintenance shall be applied for and calculated-paid one month period for each employee. However, the return of non-paid subsidies constitutes an unfair return of subsidies. Furthermore, the return of subsidies for the entire period does not constitute a disciplinary measure for the period that does not actually violate the provision of subsidies for employment maintenance; ② Additional collection of subsidies for the entire period is not necessary for the period of suspension; ② It does not necessarily mean that the amount of subsidies for employment maintenance should be additionally collected for the same period of time as the amount of subsidies for each employee subject to additional collection on a one-month basis.

According to this, the defendant can calculate and impose the amount of money to be returned and additionally collected on the date when the worker in this case actually worked during the period of employment maintenance measures (suspension of business) on the basis of the amount of money to be provided for the day when the worker in this case actually worked during the period of employment maintenance measures, and the date when the worker in this case actually worked during the period of employment suspension (suspension of business), is the same as the date when the worker in this case actually worked during the period of employment suspension (the date when the worker in this case was actually worked during the period of employment suspension) in the attached Table 1, and it is recognized that the same facts are the same as the amount

Therefore, the portion ordering the return exceeding KRW 20,817,654 of the instant disposition and the portion ordering the additional collection exceeding KRW 31,449,086 is unlawful.

D. Sub-determination

Ultimately, the portion exceeding KRW 20,817,654 of the order to return KRW 28,282,960 in the instant disposition, and the portion exceeding KRW 31,449,086 of the decision to additionally collect KRW 44,219,730 of the order to return KRW 28,282,960, should be revoked.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

The chief judge, chief judge and associate judge

Judges Yellow Jae-ho

Judges Kim Gin-han

1) The portion for the year 2007, 2008, 1 times, and 2 times for the year 2009.

2) The above amount is less than the sum of the disposition amount column in the attached Form 1 calculation sheet, which is less than the sum of the disposition amount in this case, which is specifically disposed by the defendant.

In the calculation process, some amounts are likely to be reduced through fractional treatment, etc.

3) Meanwhile, the Plaintiff’s failure to comply with the pre-reported employment maintenance plan (suspension of business) and employment oil by falsity and other illegal means.

Although the claim is divided into the receipt of the branch subsidy, the amendment was made at least by Presidential Decree No. 22603 on December 31, 2010.

Before Article 20(5) of the Enforcement Decree of the Employment Insurance Act is newly established and implemented, there is no need to distinguish between the two in this case.

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.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.