(영문) 의정부지방법원 2012.8.21. 선고 2011구합4713 판결

The Defendant’s order of return of KRW 2,592,00 for unemployment benefits against the Plaintiff on August 16, 2011 and disposition of additional collection of KRW 2,592,00 for unemployment benefits against the Plaintiff B on the same day, and disposition of additional collection of KRW 3,456,00 for unemployment benefits, and disposition of additional collection of KRW 3,456,00 for unemployment benefits against the Plaintiff B on the same day, and revocation of the joint and several liability decision against the Plaintiff C organization on August 17, 2011.

Reasons

1. Details of the disposition;

A. On November 30, 2009, Plaintiff A and B, respectively, retired from employment at Plaintiff C’s organization (hereinafter “Plaintiff C organization”) on November 30, 2009, upon applying for recognition of eligibility for employment insurance to the Defendant on December 14, 2009. The Plaintiff A received KRW 2,592,000 in total, 3,500 in unemployment benefits (job-seeking benefits1) from the Defendant for each of the following periods: 90 days for the fixed benefit payment days; 120 days for the benefit period from March 21, 2010 to March 20, 2010; 120 days for the fixed benefit payment days; 16,000 won for the Plaintiff B; 16,000 won for the benefit period from April 19, 2010.

A person shall be appointed.

B. On the same day, the Defendant received unemployment benefits by concealing the continued employment relationship with the Plaintiff C, and on the ground that it was attributable to the Plaintiff’s false report of severance and the report of the loss of the insured status of the employment insurance, pursuant to Articles 61 and 62 of the Employment Insurance Act (amended by Act No. 10719, May 24, 201; hereinafter the same shall apply), ordered the Plaintiff A to return KRW 2,592,00,000 for unemployment benefits and additionally collect KRW 2,592,00 for additional collection against the Plaintiff B on August 16, 201, and issued an order to return KRW 3,456,00 for unemployment benefits and additional collection of KRW 3,456,00 for KRW 3,456,00 for each disposition against the Plaintiff’s organization on the 17th of the same month (hereinafter referred to as “each disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-3, Eul evidence 1-2-1 and 2-2, and the purport of the whole pleadings

2. Whether the lawsuit filed by the Plaintiff C is legitimate

A. The defendant's main defense

The Plaintiff’s C organization is merely a branch office affiliated with D (hereinafter “D”) that belongs to the Incorporated Foundation, and the director E registered as D’s representative is a legitimate representative of the Plaintiff’s C organization. Therefore, the lawsuit filed by the Plaintiff’s C organization with the Plaintiff’s representative who is merely a member of F is illegal.

B. Determination

In light of the following circumstances, even if the Plaintiff’s organization is an affiliated organization of D, it has an independent decision-making body, such as a general meeting and board of directors, and an executive body based on internal regulations, deliberation and resolution on important matters independently without involvement of D, and the organization itself remains in existence without relation to changes arising from membership, withdrawal from membership, etc., the Plaintiff’s organization appears to be an independent non-corporate body separate from D. The Plaintiff’s organization appears to be a non-corporate body, the Plaintiff’s representative of F, registered its business, entered into employment contracts with its employees, including the Plaintiff and B, and the Defendant also entered its representative at the time of notification of joint and several liability decision-making as of August 17, 201 in F, the representative of the Plaintiff’s C organization is determined as F, and the Plaintiff’s representative at the time of notification of the decision-making on the Plaintiff’s joint and several liability as of August 17, 201, and the lack of power to represent the Plaintiff’s lawsuit in this case, which raised F as its representative, does not seem any other grounds for the Defendant’s defense.

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

A. The plaintiffs' assertion

(1) Non-existence of the grounds for disposition

In order to ensure the safety of the children protected by the absence of assistant teachers, the Plaintiff’s organization requested the Plaintiff A and B to enter into an employment contract (social job contract) and leave their jobs, and that the Plaintiff A and B had been engaged in volunteer activities in the Plaintiff’s organization. The Plaintiff’s organization was engaged in volunteer activities in the Plaintiff’s organization. The Plaintiff’s organization calculated and paid to the Plaintiff A and B a maximum of 30,000 won per day for volunteer activities, heavy food expenses 2,100 through 3,00 won for each day. Accordingly, under different premise, even if the Plaintiff and B continued to maintain the employment relationship with the Plaintiff’s organization, the Plaintiff’s respective dispositions of this case were unlawful on the grounds that the Plaintiff’s organization supported it.

(2) A deviation from or abuse of discretionary power

Even if the ground for the disposition of this case is recognized, considering all the circumstances, including the fact that the plaintiff A and B received unemployment benefits without considering the fact that the volunteer cost is too small compared to the cost of living, and that the plaintiff A and B are faced with the difficult living environment, and the plaintiff C organizations are facing the lack of budget at all times, the defendant's disposition of this case is in violation of the law of deviation from and abuse of discretion.

B. Relevant statutes

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

(1) The Plaintiff C organization is a non-corporate body that independently works with the above foundation in the form of D’s branch, and is engaged in social service activities such as juvenile promotion projects, child welfare projects (hereinafter referred to as nursing, child care, education), social education projects, lifelong education projects, and juvenile cultural projects within the ancient city area.

(2) On May 1, 2007, Plaintiff B entered the Plaintiff C organization upon entering into an employment contract with each Plaintiff C organization on April 13, 2009, and thereafter, Plaintiff A was in charge of early childhood education during the child welfare business. Plaintiff A was in charge of early childhood education, Plaintiff A was in charge of six infant group, Plaintiff B was in charge of five infant group, and Plaintiff B was in charge of five infant group. At the time, Plaintiff A and B were paid KRW 837,00 per month as basic salary, and the working hours were from 9:0 p.m. to 4:0 p.m., and there was no worker who substituted the said Plaintiffs.

(3) Even after November 30, 2009, the expiry date of the above employment contract, Plaintiff A and B, even though they did not renew the formal contract, they were independently responsible for each infant group without changing the work in charge, working hours, etc., on December 7, 2009, the Plaintiff C organization filed a report on the departure from employment and the report on the loss of insured status (on November 30, 2009: the expiry date of the employment contract, the date of loss: December 14, 2009) with the Defendant on December 14, 2009, and received each unemployment benefits as seen earlier after obtaining a decision to recognize the eligibility for benefits from the Defendant employment insurance company on December 17, 2009. Meanwhile, among the unemployment benefits benefit benefit benefit benefit period, Plaintiff A and B received KRW 400,000 from the Plaintiff’s volunteer service organization on the monthly average basis, but were in charge of the same work hours as the previous work hours.

(4) On April 23, 2010, immediately after the expiration of the unemployment benefits benefit period of Plaintiff A and B, the Plaintiff’s organization drafted an employment contract again with Plaintiff A and B, but there was no change in the work hours, work hours, etc. of Plaintiff A and B.

(5) On the other hand, with respect to the reasons why the Plaintiff A and B received less wages than ordinary times during volunteer service after being investigated by the Defendant on whether the unemployment benefits were illegally received from the Defendant, the amount of the unemployment benefits received at the time of volunteer service was not significantly related to the amount of the unemployment benefits.”

On April 23, 2010, as to the reasons why the employment contract was re-established, “The director of the Plaintiff’s organization (the director of the Plaintiff’s organization G), who started to work for three months, asked at the time when unemployment benefits are unemployment benefits, and the author (the Plaintiff A) up to three months, and the Nonon was made at the end of four months, and the Nonon on April 23, 201.”

[Ground of recognition] Facts without dispute, Eul evidence Nos. 1, 2, Eul evidence Nos. 3 through 6, the purport of the whole pleadings

D. Determination

(1) Whether there is no ground for disposition

Article 40 (1) 2 of the Employment Insurance Act provides for one of the requirements for receiving job-seeking benefits (including cases of running a for-profit business) although one has an intention and ability to work, and Article 61 of the same Act provides that "the person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits from the date when he/she received, or attempted to receive, such benefits (paragraph (1)) or from the date when he/she received, or attempted to do so, falls under any of the causes prescribed by Presidential Decree, such as failure to report under Article 47 (1) or false reports, no job-seeking benefits shall be paid (paragraph (2)) for the period subject to the recognition of unemployment, and Article 62 (1) of the same Act provides that "the head of an employment security office may order the person who has received job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits paid to him/her, and additionally collect an amount equivalent to or less than the amount of job-seeking benefits paid by fraud or other improper means."

Meanwhile, “False or other unlawful means” generally refers to any unlawful act committed by a person who is not eligible for benefits, who pretends to be eligible for benefits or conceals employment or income generated, and such act constitutes a case where a person having employment income fails to fulfill his duty to report (see Supreme Court Decision 2002Du7494, Sept. 23, 2003). The following circumstances revealed as follows: ① the labor provided by Plaintiff A and B to the Plaintiff organization has been the same contents as that of the Plaintiff during the past employment contract period or unemployment benefits period; ② the labor provided by the Plaintiff organization during the above period was determined by the contents of the Plaintiff A and B; ② the Plaintiff organization continued to maintain subordinate relations with the Plaintiff’s employment contract period under the premise that the Plaintiff’s employment contract was terminated for the period of unemployment benefits under the premise that the Plaintiff’s employment contract was terminated for the period of unemployment benefits under the premise that the Plaintiff’s employment contract was terminated for the period of 80 months prior to the retirement benefits under the premise that the Plaintiff’s employment contract was terminated.

(2) Whether there is deviation or abuse of discretionary power

According to Article 104 of the Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 32, Sept. 16, 2011), in cases of illegal receipt of unemployment benefits, the amount of additional collection for additional collection of 100/100 of the amount of illegal payment is determined. Considering the various circumstances asserted by the Plaintiffs, the Defendant’s disposition under the above Enforcement Rule cannot be deemed to be excessively harshly harsh to the Plaintiffs by abusing and abusing discretion. Accordingly, the Plaintiffs’ assertion on other premise is without merit.

4. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so decided as per Disposition.