2020 Dodan52606 Revocation of non-approval of eligibility for employment insurance

A

The Seoul Regional Employment and Labor Agency Head of the Seoul Regional Labor Office

May 21, 2020:

June 18, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On April 1, 2019, the defendant revoked a disposition not to grant eligibility for employment insurance against the plaintiff on April 1, 2019.

1. Details of the disposition;

A. On December 31, 2018, the Plaintiff filed an application for recognition of eligibility for employment insurance with the Defendant on March 22, 2019, asserting that he/she retired at B University upon termination of the contract period.

B. On April 1, 2019, the Defendant rendered a decision to deny recognition of eligibility for benefits (hereinafter “instant disposition”) on the ground that the Plaintiff did not submit a certificate of business suspension or a certificate of business closure within seven days from the date of application for eligibility for benefits, if the Plaintiff did not actually operate his/her business even though the Plaintiff failed to do so due to the absence of the intention of business suspension or business closure. In response to the request, the Plaintiff filed a request with an employment insurance examiner for an examination, but the said examiner dismissed the request on July 11, 2019. The Plaintiff filed a request with the employment insurance examiner for an examination, and the said Committee dismissed the request on November 6, 2019.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 4, and the purport of the whole pleadings

A. The plaintiff's assertion

Since the registration of business was made by C Co., Ltd and D (hereinafter collectively referred to as "each company of this case"), the Plaintiff is not a business entity, and there is no room for the Plaintiff to suspend or discontinue business. Although the Plaintiff was the representative of each company of this case, it cannot be deemed that the Plaintiff had been employed since he did not perform his duties at all times and did not receive any remuneration. Nevertheless, the Defendant's disposition of this case on a different premise should be revoked illegally.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Article 92 Subparag. 6 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 237, Dec. 31, 2018; hereinafter referred to as the "former Enforcement Rule of the Employment Insurance Act") provides that "where an eligible recipient has registered his/her business under tax-related Acts, he/she shall be deemed to have been employed." Article 40(1)2 of the former Employment Insurance Act (amended by Act No. 16269, Jan. 15, 2019; hereinafter referred to as the "former Employment Insurance Act") provides that "job-seeking benefits (including where a business has been operated for profit-making purposes; hereinafter referred to as "employment") shall be in the state of failure to be employed despite his/her intent and ability to engage in the business."

Ultimately, when an eligible recipient has registered his/her business under tax-related Acts, it shall be deemed that the eligible recipient was employed and fails to meet the requirements for receiving job-seeking benefits. This shall also include the case where the eligible recipient has registered his/her business as a representative corporate entrepreneur. The reasons are as follows

① Article 40(1)2 of the former Employment Insurance Act only provides that “an employee shall engage in a for-profit business,” and thus, it cannot be deemed that an eligible recipient runs a business as an individual entrepreneur.” Article 92 Subparag. 6 of the former Enforcement Rule of the Employment Insurance Act also provides that “Where an employee has registered his/her business in accordance with tax-related Acts, it shall not be deemed that only the case where an individual entrepreneur has registered his/her business.”

② Article 92 of the former Enforcement Rule of the Employment Insurance Act provides that, in addition to registration of business under tax-related Acts, if an eligible recipient actually provides labor or conducts business, he/she shall be deemed to have provided labor for at least 60 hours during one month, and thus, he/she shall be deemed to have provided labor. The purpose of Article 92 of the former Enforcement Rule of the Employment Insurance Act is to determine the period for which an eligible recipient is deemed to have provided labor or conducted business during that period and to obtain recognition of unemployment, and the same applies to whether job-seeking benefits meet the requirements for receiving job-seeking benefits. Accordingly, even if an eligible recipient becomes the representative and registered business as

③ A business operator is registered as a legal entity rather than a business operator after being registered as an individual business operator, and an eligible beneficiary is the representative of the legal entity and operates the business, but the scope of the business and the profit therefrom are greater than that of the legal entity, it does not accord with equity. In full view of the purport of the entry and the entire argument in subparagraph 2, the Plaintiff is recognized as the Plaintiff’s representative of C Co., Ltd. operating on December 9, 2015 and D conducting the business on January 1, 2016. Accordingly, the Plaintiff is deemed as having been employed as a business operator in each of the instant cases, and thus, the Plaintiff did not meet the requirements for receiving job-seeking benefits.

2) Whether the Plaintiff’s performance of duties can be viewed as having been in a non-employment state in light of the Plaintiff’s details of duties,

As seen earlier, so long as the Plaintiff is deemed to have been employed as a case where the Plaintiff was registered as a business operator under tax-related Acts, it should have failed to conduct the actual business in order to deem that the Plaintiff was in a state of unemployment despite being able to work despite being able and willing to work. The evidence submitted by the Plaintiff alone is insufficient to recognize it, and no other evidence exists to acknowledge it, and there is no circumstance that each

Article 92 subparag. 5 of the former Enforcement Rule of the Employment Insurance Act shall be examined on the premise that the Plaintiff is not a business registration case. However, the Plaintiff asserts that there is a situation in which the Plaintiff is not employed because it is not recognized that it is difficult for the Plaintiff to ordinarily find employment in other businesses because the Plaintiff worked in each of the instant companies with non-standing and unpaid remuneration. However, even if it is erroneous as seen earlier, Article 92 subparag. 5 of the former Enforcement Rule of the Employment Insurance Act provides that “If it is deemed difficult for the Plaintiff to ordinarily find employment in other businesses by participating in the business of another person and providing labor, it shall be deemed to have been employed.” However, in this case where the issue is whether the Plaintiff, a representative of each of the instant companies, was employed or not,

3) Therefore, the Defendant’s instant disposition based on the same premise is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

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

Judges Kim Jae-jin

A person shall be appointed.

A person shall be appointed.