(영문) 인천지방법원 2012.4.12. 선고 2011구합3092 판결

1. On June 16, 2010, the part that exceeds 5,400,000 won among the Defendant’s orders to return new employment promotion incentives and employment promotion incentives for small and medium enterprise professionals to the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

Purport of claim

On June 16, 2010, the Defendant’s disposition of restricting the payment and withdrawing the subsidy for new employment promotion rendered to the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a company with the objective of developing Internet contents and providing information.

B. On June 1, 2007, the Plaintiff applied for the payment of the new employment promotion subsidy to the Defendant on the ground that he had newly employed B who was unemployed for a period of less than 29 years of age and more than 3 months of age, and the Defendant paid the Plaintiff a total of 5,400,000 won of the new employment promotion subsidy from July 24, 2007 to May 2, 2008.

C. In addition, during the period from July 24, 2007 to May 1, 2009, the Plaintiff was paid KRW 32,681,480 as a sum of KRW 15,879,90 as a subsidy for the promotion of new employment, and KRW 16,80 as a subsidy for the utilization of specialized human resources in small and medium enterprises, and KRW 16,80 as a subsidy for the promotion of new employment.

D. On June 16, 2010, the Defendant issued a new employment promotion subsidy to the Plaintiff on the ground that “the Plaintiff, while employing the Plaintiff around February 16, 2007, did not meet the requirements for the supply and demand of the promotion subsidy,” issued a new employment promotion subsidy to the Plaintiff during the period of employment and reported the acquisition of employment insurance after the unemployment period and the unemployment period, and issued a false report on employment promotion subsidy by stating the employment date in the relevant documents, such as the application for the subsidy and the benefit ledger,” and issued a return of the additional subsidy amounting to KRW 5,40,00 (hereinafter “instant subsidy”) and the payment restriction period (from July 24, 2007, from May 1, 2009, from the date of the commencement of the supply and demand of the instant subsidy to May 1, 2009), and issued a return of the additional subsidy amounting to KRW 38,400,000,500,000,000.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 9, 10, 13, and 16, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) From February 2007 to May 31, 2007, B received training in accordance with a consignment contract between the Plaintiff and Chigh schools according to the “industry-academia-research human resource training project for industry-academia-research and industry-specific human resources training project”. As such, the Plaintiff did not receive training fees by fraud or other improper means.

(2) Even if the Plaintiff’s illegal receipt of the instant incentive, the part of the instant disposition ordering the Plaintiff to return KRW 32,681,480, which exceeded the refund of KRW 5,400,00 and the additional collection of KRW 5,400,00 corresponding to the instant incentive during the said restriction period, and the total amount of KRW 32,681,480, which was paid during the said restriction period, is in violation of the principle of proportionality and the principle of good faith.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(1) B stated that, on October 14, 2009, the career column of the application for job seeking submitted to the Employment Support Center for the Plaintiff from February 2007 to February 2008, B had worked in the Plaintiff Company. On March 26, 2010, even in the course of investigating whether the instant incentive was unlawfully received, the Plaintiff worked in the Plaintiff Company from the end of February 2007, but stated that, upon the Plaintiff’s direction, the date of preparation of the application for job seeking was stated as May 29, 2007.

(2) B, from the end of February 2007 to the end of January 2008, there is no fact that B had worked in the Plaintiff’s workplace and had received regular education in addition to having received necessary education.

(3) The Plaintiff paid KRW 700,400 per month to B, from March 2007 to May 2007, through the account in the name of D, and KRW 932,640 to KRW 95,50 per month from June 2007 to December 2007.

(4) B participated in and graduated from a customized training program for industry-academia-research circles between C High School and E from June 2006 to February 2007, 2007, and on February 2007, the above school and the above school entered into an entrustment contract for education and training based on a customized training program for industry-academia-research circles between the Plaintiff and the above school on April 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 5, 7, 9, Gap evidence No. 8-1, Eul evidence Nos. 2 through 8, 15, 18, and 19, Eul's testimony, and the purport of the whole pleadings

D. Determination

(1) Whether the Plaintiff received the instant incentive by fraud or other improper means

"False or any other fraudulent means, which is a requirement for an order for return and a disciplinary measure for additional collection as prescribed by Article 35 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) refers to any and all unlawful acts conducted by an unqualified business owner in order to conceal the eligibility to receive payment or to conceal the lack of eligibility to receive payment (see, e.g., Supreme Court Decision 2009Du4272, Jun. 11, 2009).

According to the provisions of Article 21 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; hereinafter the same shall apply) and Article 22-2 (1) and 5 of the Enforcement Decree thereof (amended by Presidential Decree No. 2030, Oct. 17, 2007; hereinafter the same shall apply), new employment promotion incentives are paid to employers who take measures necessary for their employment stability in order to prevent the structural deterioration of unemployment by promoting employment of workers who are particularly difficult to find a job under the ordinary conditions of the labor market and to facilitate their entry into the labor market. According to the provisions of Article 22-2 (1) and 5 of the former Employment Insurance Act (amended by Presidential Decree No. 2030, Oct. 17, 2007; hereinafter the same shall apply), a business owner shall employ those aged below 29 years from the date of applying for jobs to employment security offices or other institutions prescribed by Ordinance of the Ministry of Labor, and shall not dismiss workers through employment adjustment

However, "employment" under Article 21 of the former Employment Insurance Act and Article 22-2 (1) of the Enforcement Decree thereof refers to an agreement that takes effect by one of the parties to provide labor to the other party and pay remuneration to the other party. In particular, in light of the legislative intent of the incentives that have the legislative purpose of promoting employment by paying the incentives when newly employing a person in a state of unemployment exceeding the unemployment period as the long-term unemployment continues, it cannot be deemed that the form or method of the employment, the type or name of the business is the job training period or the training period.

With respect to this case, the above facts are as follows: ① from February 2, 2007 when the Plaintiff graduated from a high school, the Plaintiff did not receive regular education in addition to job training whenever it is necessary to perform his duties; ② from February 2, 2007 to January 2, 2008, the Plaintiff stated that he was employed by the Plaintiff company and was paid a certain amount of money every month from March 2007 to December 2007; ③ an entrustment contract for education and training for customized human resources training programs between the Plaintiff and C High School was concluded after withdrawal from the Plaintiff company; ④ In light of the fact that the Plaintiff was aware that the Plaintiff was not eligible for new employment promotion incentives, and it appears that the Plaintiff had B made the Plaintiff enter the date of employment promotion differently from the fact that he was employed in the Plaintiff’s workplace, it is reasonable to deem that the Plaintiff did not receive new wages for the purpose of receiving wages from February 2, 2007 to the Plaintiff, and thus, the Plaintiff did not have received new wages from the Plaintiff.

(2) Whether the instant incentive exceeds 5,400,000 won in the instant order to return KRW 38,081,480 in aggregate) such as the principle of proportionality, etc.

Article 35(1) of the former Employment Insurance Act provides that a person who has received or intends to receive support for employment security and vocational skills development programs by fraud or other improper means may be ordered to restrict the support or return the support already provided, as prescribed by Presidential Decree. Article 35-4(2) of the former Enforcement Decree of the Employment Insurance Act (hereinafter “Enforcement Decree of this case”) provides that a person who has received or intends to receive the subsidy by fraud or other improper means shall not be granted the subsidy for one year from the date he/she received or attempted to receive the subsidy, and that a person shall be ordered to return the subsidy paid during the restriction period for one year from the date he/she received or attempted to receive the subsidy by fraud or other improper means. This provision provides that the person who has received or intended to receive the subsidy by fraud or other improper means shall be ordered to return the subsidy if it had already been paid without paying any amount of the subsidy, thereby achieving the purpose of sanction against the unfair recipient of the employment insurance fund and preventing the unfair payment of the future subsidy.

In addition, Article 35(2) of the former Employment Insurance Act provides that an amount equivalent to or less than the amount received by fraud or other improper means may be collected as a punitive meaning, and accordingly, Article 25(4)1 of the former Workers’ Vocational Skills Development Act (amended by Act No. 9316, Dec. 31, 2008); Article 22-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21398, Mar. 31, 2009); Article 9(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009); Article 9(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Labor No. 320, Apr. 1, 2009) additionally

In light of the following circumstances, i.e., the content, purpose and purport of the above-mentioned provision, i.e., new employment promotion incentive paid to workers who have difficulty in finding employment under ordinary conditions; ii) the return order for new employment promotion incentive has the nature of restoration to the original state to recover losses caused by the insurance finance; thus, the purpose of restitution can be achieved. Furthermore, if the Plaintiff orders the return of new employment promotion incentive or other kinds of employment promotion incentive for the other insured than those received by fraudulent means, i.e., new employment promotion incentive or other illegal means, i., e., e., 00 won for 20 years; ii) the return order for new employment promotion incentive or other illegal means; iii) the return order for new employment promotion that exceeds 60 times the amount of the incentive that the Plaintiff received by fraudulent means, i.e., 60 times the amount of the incentive that the Plaintiff received by illegal means, 20 times the amount of the incentive that the Plaintiff received by illegal means, 20 times the amount of the incentive.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of seeking revocation of the disposition of this case as to the portion exceeding KRW 5,400,000 among the return order of KRW 38,081,480,000, total amount of the new employment promotion subsidy and the promotion subsidy for the utilization of professional manpower of small and medium enterprises, and the remaining claim is dismissed as it is without merit.