(영문) 부산지방법원 2017.10.25. 선고 2017구단255 판결

The Defendant’s disposition of restricting the payment and ordering return of KRW 1,204,000 for unemployment benefits to the Plaintiff on May 16, 2016 shall be revoked.

Reasons

1. Details of the disposition;

A. On November 30, 2015, the Plaintiff filed an application for recognition of eligibility for employment insurance with the Defendant on December 24, 2015, on the grounds that he/she retired from the Joint Shipping (ju) on November 30, 2015, and the Defendant recognized the eligibility for benefits of KRW 150,000 for the fixed benefit payment days and KRW 43,000

B. From January 7, 2016 to May 30, 2016, the Plaintiff filed an application for the recognition of unemployment on a total of six occasions with the Defendant. From December 31, 2015 to May 28, 2016, the Defendant paid a total of KRW 6,450,000 to the Plaintiff as the period subject to the recognition of unemployment (of them, from February 5, 2016 to March 3, 2016) (hereinafter referred to as “instant unemployment benefits”) for the period subject to the recognition of unemployment (from March 3, 2016 on the date of the recognition of unemployment), the Plaintiff filed an application for the suspension of payment of unemployment benefits to the Plaintiff on the ground that the Plaintiff was staying in the Republic of Korea from March 22, 2016 to March 3, 2016, and the Plaintiff received an application for the suspension of payment of unemployment benefits from March 26, 2016 to March 36, 2016.

D. The Plaintiff dissatisfied with the instant disposition and filed a request for review with an employment insurance examiner on July 28, 2016, but the said request for review was dismissed. The Plaintiff filed a request for review with the Employment Insurance Review Committee, but the said request for review was dismissed on November 23, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 9, 10, Eul evidence Nos. 1, 2, 5, and 6 (including additional evidence, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Although it is recognized that the Plaintiff did not comply with the procedures for unemployment recognition, the Plaintiff was entitled to unemployment benefits and actually engaged in job-seeking activities during the period subject to unemployment recognition, and did not claim unemployment benefits by unlawful means, such as being employed or having no income generated. Therefore, the instant disposition is unlawful since it is not recognized as a ground for such disposition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i)requirements for the recognition of unemployment and for receiving unemployment benefits;

A) Comprehensively taking account of the provisions of Article 40(1)2 and 40(1)4, and Article 44(2) and (3) of the Employment Insurance Act, in order to receive unemployment benefits (job-seeking benefits), it is reasonable to interpret that: (a) the retired insured is in a state of being unable to find a job despite his/her intent and ability to work; (b) the substantive requirements such as active efforts to re-employment; and (c) the procedural requirements such as receiving unemployment recognition by reporting his/her endeavor to re-employment at the date designated by the head of the Employment Security Office (date of unemployment

B) In particular, Article 44(2) of the Employment Insurance Act provides that an eligible recipient who intends to obtain the recognition of unemployment shall appear at the unemployment recognition date and apply for job-seeking benefits: Provided, That where an eligible recipient is unable to appear at the unemployment recognition date due to reasons prescribed in Article 65 subparag. 1, 2, 4, or 5 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016; hereinafter the same shall apply), an application for the alteration of the unemployment recognition date shall be made; where an applicant is unable to appear at the unemployment recognition date due to reasons prescribed in Article 65 subparag. 1, 2, 4, or 5 of the former Enforcement Decree of the Employment Insurance Act (Article 44(3)1 of the Employment Insurance Act; Article 44(3)2 of the Employment Insurance Act); where an applicant fails to appear at the Employment Insurance Association (Article 44(3)3 of the Employment Insurance Act); where the head of the Employment Insurance Association fails to report directly or directly to present at the Internet (Article 65).

C) In principle, the purport of recognizing the exception to the direct appearance of an eligible recipient in order to obtain unemployment recognition is to resolve economic and social difficulties caused by unemployment through the payment of necessary benefits when a worker is unemployed, and at the same time prevent unemployment benefits from being unfairly paid due to moral hazard by directly checking the content of job-seeking activities and their intent and ability to re-employment.

In light of this purpose, Article 5 of the former Regulations on the Recognition of Unemployment and the Assistance to Re-employment (amended by Presidential Decree No. 119, Jan. 9, 2017; hereinafter the same) provides that a beneficiary shall confirm whether he/she has been present at the designated unemployment recognition date (Article 5) and whether he/she has been present at the designated unemployment recognition date (Article 9(1) and (2) shall confirm whether the beneficiary himself/herself has been present at the designated unemployment recognition date, and the whole unemployment of the period subject to the recognition of unemployment shall not be recognized unless the beneficiary is present at the designated unemployment recognition date or fails to attend the designated unemployment recognition date, except as otherwise provided for in Acts and subordinate statutes.

D) Furthermore, even if a special case in the recognition of unemployment is a person recognized by the head of an employment security office to be able to report directly re-employment activities and income generated through the Internet (Article 65 subparagraph 9 of the former Enforcement Decree of the Employment Insurance Act), Article 89(6) of the former Enforcement Rule of the Employment Insurance Act provides that a person shall faithfully report whether to engage in re-employment activities and income generated through an information and communications network using an authorized certificate on the date designated by the head of the employment security office pursuant to Article 89(6) of the former Enforcement Rule of the Employment Insurance Act, and Article 9(4) of the former Enforcement Rule of the Employment Insurance Act also provides that where an eligible recipient stays overseas for personal reasons, not for employment, and reports on whether to engage in re-employment activities and income generated through the Internet, all

Ultimately, in light of the contents and purport of the above provisions, as long as an exception was recognized in the application method of the recognition of "direct attendance" while applying for the recognition of unemployment in order to obtain the recognition of unemployment, it is reasonable to interpret that the recognition of unemployment should be applied for the recognition of unemployment when staying in Korea at least as "direct attendance at the recognition date", and that where a person applies for the recognition of unemployment and receives unemployment benefits through another person while staying in a foreign country for personal reasons, such as overseas travel, which is not an inevitable reason for not being able to attend the recognition of unemployment without filing an application for the alteration of the recognition of unemployment, it is reasonable to interpret that the "direct attendance" should not be paid or returned

2) Whether the Plaintiff is qualified to receive unemployment benefits

In light of the purport of the aforementioned relevant provisions, we examine the instant case. In full view of the purport of the entire arguments, the Plaintiff’s stay in a foreign country from March 2, 2016 to March 6, 2016, and the Plaintiff’s application for unemployment recognition through the Internet on March 3, 2016, which is the unemployment recognition date of the instant unemployment benefits, was not possible in Korea, and the Plaintiff’s family member filed an application for unemployment recognition as a proxy and received the instant unemployment benefits. Accordingly, the Plaintiff received unemployment benefits for the period subject to unemployment recognition (job-seeking benefits) without any inevitable reason, since the Plaintiff did not file an application for change of unemployment recognition or file a report on direct re-employment activities and income generated in the designated unemployment recognition date, this constitutes a case where the Plaintiff received unemployment benefits (job-seeking benefits) by fraudulent or other unlawful means.

3) Sub-committee

Therefore, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit.