(영문) 서울행정법원 2011.11.4. 선고 2011구합22273 판결

The following facts are either disputed between the parties, or acknowledged in full view of the purport of the whole pleadings in each of the evidence No. 1, No. 5-1, No. 2, No. 6, and No. 3.

A. On April 10, 2010, the Plaintiff worked as a staff of the Seocho-gu Seoul Metropolitan Government C Legal Office (hereinafter referred to as “instant legal office”)’s legal office (hereinafter referred to as “instant office”).

B. On April 14, 2010, C, the business owner of the instant legal office, is “insured” to the Defendant on April 14, 2010: The date of loss: April 10, 2010; the reason of loss: Other personal circumstances (including non-recommended voluntary retirement).

On April 5, 2011, the Plaintiff sent a written request to the Defendant for unemployment benefits of KRW 9,600,000 to the unemployment benefits, and the said written request for unemployment benefits was served to the Defendant on April 6, 201.

D. Accordingly, on April 8, 2011, the Defendant rendered the instant disposition rejecting payment on the ground that the Plaintiff’s severance from employment at the instant legal office on April 9, 2010 constitutes grounds for restrictions on unemployment benefits and the benefit period falls under grounds for restrictions on unemployment benefits, and that the benefit period falls under the grounds for restrictions on unemployment benefits, and the eligibility requirements are not satisfied as of April 10, 201.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The reason why the Plaintiff retired from the law office of this case is the time when the distance was reduced due to the depression of the attorney-at-law industry. Accordingly, the Defendant’s disposition that deemed the Plaintiff to have retired from employment due to personal circumstances is unlawful, even though the Plaintiff’s departure was due to the reduction of the number of employees due to the need for management of the law office of this case, such as prevention

2) As long as the Plaintiff requested the Defendant to pay unemployment benefits on April 6, 2011 before departure from employment on April 10, 2010, which was 12 months after departure from employment, the Defendant’s disposition on the ground that the benefit period expired is unlawful.

B. Relevant statutes

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

C. Determination

1) Article 42(1) of the Employment Insurance Act provides that “A person who intends to obtain job-seeking benefits shall, without delay, appear at an employment security center and report the unemployment.” Article 42(2) of the same Act provides that “The report of unemployment under paragraph (1) includes an application for job-seeking and an application for recognition of eligibility for benefits under Article 43.” Article 61(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 23139, Sept. 15, 201) provides that “a person who intends to report unemployment shall file an application for job-seeking under Article 9 of the Employment Security Act and submit an application for recognition of eligibility for benefits to the head of an employment security office having jurisdiction over his/her place of residence.” Article 44(1) of the Employment Insurance Act provides that “job-seeking benefits shall be paid to an eligible recipient who is recognized as unemployment from among the days in which the eligible recipient is unemployed,” and Article 2 subparag. 4 of the same Act provides that “the head of an employment security office actively acknowledges.”

In full view of the provisions of the aforementioned relevant statutes, the right to claim job-seeking benefits does not automatically arise, but rather, the right to claim job-seeking benefits is filed by a person seeking to receive job-seeking benefits, including job-seeking applications and applications for recognition of eligibility for benefits, under Article 9 of the Employment Security Act. Accordingly, the right to claim job-seeking benefits may only arise when the head of an employment security office recognizes unemployment among the days in which an eligible recipient was unemployed. Thus, a person who did not apply for job-seeking benefits is not entitled to claim job-seeking benefits even if he/she

2) On April 14, 2010, in light of the health department, C’s report on loss of the insured status of the Plaintiff against the Defendant on April 14, 201, and the fact that the Plaintiff submitted a written claim for unemployment benefits to the Defendant on April 6, 2011, as seen earlier. However, upon receipt of an application for job seeking under Article 9 of the Employment Security Act, the head of the Employment Security Office shall not only have the obligation to find a job under Article 11 of the Employment Security Act, but also have the obligation to identify the job seeker’s personal information, working conditions, etc., and to enter and manage them in computer pursuant to Article 2(2) and (3) of the Enforcement Rule of the Employment Security Act. In order to be recognized as an application for job seeking, it should include at least the information necessary for job placement and management, i.e., desired employment conditions, desired employment type and amount, or major job seeker’s career experience, etc. (Article 2(1) of the Enforcement Rule of the Employment Security Act).

3) Therefore, it cannot be deemed that the above employment insurance report or claim for unemployment benefits was a job application under Article 9 of the Employment Security Act, and there is no other evidence to prove that there was an application for job seeking. Therefore, the Plaintiff’s above assertion premised on the application for job seeking is without merit.

[A] Even if the Plaintiff’s claim for unemployment benefits against the Defendant on April 6, 2011 is deemed as a unemployment report under Article 42 of the Employment Security Act, the Employment Insurance Act limits the period of job-seeking benefits to the date seven days after the date of reporting unemployment, by providing that the period of job-seeking benefits shall not be paid for the seven-day waiting period, starting from the date of reporting unemployment under Article 49. Meanwhile, Article 48(1) provides that job-seeking benefits shall be paid within the limit of 12 months from the date after the date of reporting unemployment related to the eligibility for benefits and the date 12 months elapse from the date following the date of leaving employment. As seen earlier, the Plaintiff’s claim for unemployment benefits against the Defendant on April 6, 2011, after leaving his/her office at the instant legal office on April 10, 2011, while the Plaintiff’s claim for unemployment benefits against the Defendant on April 13, 2011, the Plaintiff’s claim is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.