2014Guhap5484 Order to Return Unemployment Benefits and Revocation of Additional Collection Order

A

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

May 30, 2014

August 22, 2014

1. On February 12, 2014, the Defendant’s order to return unemployment benefits and the decision to additionally collect unemployment benefits that the Plaintiff rendered shall be revoked.

The same shall apply to the order.

1. Details of the disposition;

A. From March 1, 2011, the Plaintiff: (a) served as a fixed-term teacher at the Green Internet High School; (b) concluded a contract with the Ganpy High School on February 28, 2013 to serve as a contract-based teacher during the contract period from March 4, 2013 to March 29, 2013; and (c) one-six hours per week during the contract period from March 4, 2013 to May 2, 2013. The contract period between the Plaintiff and the Ganpy High School was extended to May 2, 2013 thereafter.

B. On September 2, 2013, the Plaintiff filed an application for job-seeking benefits with the Defendant pursuant to Article 42 of the Employment Insurance Act and Article 61 of the Enforcement Decree of the Employment Insurance Act by stating his/her last place of business as the “Prior Internet High School,” and accordingly, the Defendant considered the Plaintiff’s last place of business as a Prior Internet High School, and paid a total of KRW 4,800,000 from September 9, 2013 to January 6, 2014. The Defendant subsequently issued a disposition to collect the same amount as “the Plaintiff returned 4,80,000,000 won” (hereinafter referred to as “the instant disposition”).

[Grounds for recognition] Gap evidence Nos. 1, 3, Eul evidence Nos. 1, 2, and 3, and the purport of the whole pleadings

A. Summary of the plaintiff's assertion

Article 62 of the Employment Insurance Act provides that a person who received job-seeking benefits by fraud or other improper means shall return job-seeking benefits that he/she has already received, and that an amount equivalent to the amount of the amount of the benefits shall be collected. However, the Plaintiff cannot be deemed to have committed a fraudulent act to additionally receive job-seeking benefits, on the ground that the Plaintiff merely thought that the period of service at the Doggggs High School is shorter and that it is a job for which he/she does not enter it in the final place of business. As such, since the Plaintiff cannot be deemed to have received job-seeking benefits by fraud or other improper means, the Defendant rendered the instant disposition by determining otherwise even though it is impossible to take the disposition prescribed in Article 62 of the Employment Insurance Act, and thus, the instant disposition should be revoked as unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

1) The Plaintiff’s act of this case is false or fraudulent under Article 62 of the Employment Insurance Act

(3) whether a person has received job-seeking benefits

A) Sanction against a violation of administrative laws is a sanction against the objective fact that is a violation of administrative laws to achieve administrative purposes, and thus, a sanction may be imposed even if the violator has no intention or negligence, barring special circumstances, such as where the violator has a justifiable reason not attributable to his/her duty (see, e.g., Supreme Court Decisions 79Nu251, May 13, 1980; 79Du5972, May 26, 2000).

B) According to Articles 45 and 46 of the Employment Insurance Act, job-seeking benefits are calculated on the basis of the average wage at the time of the most recent severance from employment. Unlike actual conditions, the Plaintiff entered the final place of business (i.e., the place of business at the time of the last severance from employment under Article 45(1) of the Employment Insurance Act), unlike the Plaintiff’s application for job-seeking benefits against the Defendant. Accordingly, the Plaintiff’s daily amount of job-seeking benefits is calculated as KRW 40,000 on the basis of his/her work at the first-time online high school (8 hours per day, basic daily wage for wages, KRW 80,000 as seen earlier) and paid KRW 4,80,000 on the basis of the above amount of job-seeking benefits. However, since the Plaintiff had worked for 16 hours per week at the second-time high school, the Plaintiff can only receive job-seeking benefits if the amount of job-seeking benefits was calculated on the basis of his/her actual job-seeking benefits at the Gyeong High School pursuant to Articles 45 and 46.

C) As can be seen, the Plaintiff received job-seeking benefits more than those actually paid by stating the final place of business differently from the actual place of business (hereinafter “instant act”), and Articles 8 and 10 of the Employment Insurance Act, and Articles 2 and 3 of the Enforcement Decree of the Employment Insurance Act provide relatively clearly the scope of the workplace and workers who are not subject to employment insurance. Thus, it cannot be deemed that there exists any justifiable reason to believe that the Plaintiff would not be subject to employment insurance obligations. Therefore, the Plaintiff was entitled to return and collect job-seeking benefits unfairly paid pursuant to Article 62 of the Employment Insurance Act and the Plaintiff could not be exempted from additional collection inasmuch as the Plaintiff’s return and collection order was issued on the entire job-seeking benefits received by the Plaintiff, the Defendant should have ordered the Plaintiff to return the entire amount received by the Plaintiff, and the Defendant should have ordered the Plaintiff to return the same amount as that of the final high school’s return of the job-seeking benefits, and even if the Plaintiff stated its final place of business as “the Plaintiff’s act of job-seeking benefits or other unlawful means.”

A) Article 62 of the Employment Insurance Act provides that an order shall be issued to fully or partially return all or part of job-seeking benefits paid to a person who received job-seeking benefits by fraud or other improper means, and that an amount equivalent to or less than the amount of job-seeking benefits paid by such fraudulent or other improper means shall be subject to sanctions against such act by recovering job-seeking benefits acquired by such fraudulent or other improper means, and by collecting a certain amount therefrom. However, considering the purport of the above provision, collecting the amount of job-seeking benefits paid without considering the contents and circumstances leading up to the occurrence of such fraudulent or other improper means, without considering the contents of “job-seeking benefits paid by such fraudulent or other improper means” and additionally collecting the amount equivalent to those of the job-seeking benefits paid by the employer without considering the details and circumstances leading up to the unemployment prevention through the enforcement of the employment insurance policy to contribute to economic and social development (see Article 1) of the Employment Insurance Act for the purpose of preventing unemployment and promoting job-seeking activities of the worker who was an insured person, is also an employee who is also an employer who is also obligated to pay the amount equivalent to receive the insurance premium (see Article 13).

B) Article 62(1) of the Employment Insurance Act, and Articles 104 subparag. 2 and 105(2)2 of the Enforcement Rule of the Employment Insurance Act provide that job-seeking benefits paid for the period of unemployment (i.e., the period of unemployment) shall be exempted from additional collection for the job-seeking benefits paid for the period of unemployment, while they were employed, in cases where they fall under any of the subparagraphs of Article 62(1) of the Employment Insurance Act, and Article 104 subparag. 2 and Article 105(2)2 of the Enforcement Rule of the Employment Insurance Act (i.e., where they fail to report or report differently from the fact when they applied for unemployment recognition during the period of unemployment recognition; and (ii) “where they reported differently from the fact that they were employed during the period of unemployment recognition” (i.e., the period of unemployment recognition) may not be directly included in the above provisions, but in light of the purport of the above provisions, it is reasonable to analogy apply the above provisions to the instant

3) Whether the instant disposition was completely revoked

A) In a lawsuit seeking the return of money and the cancellation of the collection disposition as to whether the instant disposition should be revoked, the subject of actual return and collection shall be the same as in the case.

In a case where the pertinent disposition is deemed to be unlawful in the course of calculating the amount that should be lawfully returned and collected based on the data submitted by the time the argument in the fact-finding court is concluded to be unlawful, the court shall regard the entire disposition as unlawful and revoke the portion exceeding the legitimate amount, not the whole amount of the disposition, and revoke only the unlawful portion. However, in a case where the amount that should be lawfully returned and collected cannot be calculated based on the data submitted by the parties concerned, the entire disposition shall be revoked. In such a case, the court shall find ex officio and actively reasonable and reasonable calculation methods and shall not be obliged to calculate the amount that should be duly returned and collected (see, e.g., Supreme Court Decision 98Du16781, May 11, 1999).

B) Even based on the evidence submitted by the parties or all the materials revealed by the court’s examination of evidence in this case, the amount of job-seeking benefits that the Plaintiff could reasonably receive due to lack of data to calculate the average wage at the time of the Plaintiff’s work at the Gyeong High School cannot be calculated. Furthermore, the Defendant’s determination of whether to exempt the amount of additional collection or exemption from such collection has to be made. Thus, the court is obliged to cancel the entire disposition

3. Conclusion

Therefore, it is reasonable to cancel the disposition of this case, and it is so decided as per Disposition.

Appointment of presiding judge or judge;

Judgment Notarial decoration

Judges Kim Tae-hee

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.