(영문) 수원지방법원 2012.6.14. 선고 2011구합16460 판결

The defendant's rejection disposition against the plaintiff on December 12, 201 against the application for employment maintenance support and the revocation of the disposition of revocation of payment notice is revoked.

Reasons

1. Facts of recognition;

A. The Plaintiff applied for employment maintenance support payment for the aforementioned period from December 23, 2009 on the ground of business deterioration to February 2009, and received KRW 5,276,700 from the Defendant on February 23, 2009, KRW 7,830,830 on March 25, 2009, and KRW 6,596,800 on June 5, 2009.

B. However, the Defendant received from the Suwon Police Station the notification from the Plaintiff that he/she worked for the above employment maintenance measure (suspension of business) during the above employment maintenance measure (suspension of business), and investigated the facts from the Plaintiff upon receiving the records of commuting from the Plaintiff. On May 17, 2011, the Defendant rejected the order for return of KRW 2,690,240, the sum of the illegally received employment maintenance support payment for the Plaintiff and the additional collection of KRW 3,783,080, the sum of the unlawfully received employment maintenance support payment for KRW 3,783,00 and the additional collection of KRW 3,783,00 from February 23, 2009 to June 5, 2010, on the ground that the Plaintiff reported the fact that he/she worked for B, C, and D during the above employment suspension period and received the payment payment unfairly from the Defendant (hereinafter “the aforementioned order for return order, additional collection restriction order, and revocation of the above additional collection order and payment restriction order”).

D. On February 24, 2011, the Plaintiff’s representative E conspired with the Defendant to receive employment maintenance support payment and to obtain it by fraud. On February 24, 201, the lower court rendered a judgment that B and D were not guilty on the grounds that the Defendant actually suspended business during the period of employment maintenance measures (suspension) and the part related to C was not recognized by fraud. On June 9, 201, the Prosecutor’s appeal against the Defendant was dismissed and the judgment of innocence became final and conclusive (hereinafter “the judgment of innocence”).

E. On the other hand, on June 9, 2011, the Defendant urged and notified the Plaintiff to pay KRW 5,926,90 (amount returned to KRW 2,690,240 + additionally collected amount to KRW 3,236,660) according to the instant prior disposition.

F. Accordingly, on August 24, 2011, the Plaintiff filed an application with the purport that “the prior disposition to the Defendant was made without legitimate grounds due to the judgment of innocence, and thus, the prior disposition to the Defendant was revoked on June 9, 2011 based on the previous disposition, and that “the payment of KRW 26,805,331, total amount of the subsidies for employment maintenance from March 2009 to June 2009” (hereinafter “instant application”).

G. However, on December 12, 2011, the defendant sent a reply to the effect that "the judgment of innocence of this case does not directly affect the validity of the prior disposition of this case, and thus the defendant does not have an obligation to cancel the prior disposition of this case" (hereinafter "the refusal measure of this case").

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

The Plaintiff asserted that the prior disposition was unlawful due to the judgment of innocence of this case, and that the demand and payment notice (disposition) based on the prior disposition of this case on June 9, 201 should be revoked, and that the total amount of subsidies for retaining employees should be paid KRW 26,805,31 from March 2009 to June 2009, the payment of which was restricted, and that the rejection of this case is revoked.

As to this, the Defendant asserts that the instant refusal disposition is unlawful since it is merely a reply with no reason to revoke the prior disposition of this case, which does not affect the Plaintiff’s rights and obligations, and thus does not constitute a disposition subject to appeal litigation.

B. Determination

1) If an administrative agency’s refusal of a citizen’s application constitutes an administrative disposition that is subject to an appeal litigation, the right to request an administrative agency’s action must be the citizen. If an administrative agency does not accept a citizen’s application without the basis of the right to request a citizen’s application, such refusal does not affect the applicant’s right or legal interest, and thus, it cannot be deemed an administrative disposition that is subject to an appeal litigation (see, e.g., Supreme Court Decision 2002Du12489, Oct. 23, 2003). In this case, the existence of the right to request a disposition of refusal should be determined abstractly by examining, without considering who is the applicant in a specific case, whether the applicant recognizes such right by the interpretation of relevant laws and regulations (see, e.g., Supreme Court Decision 2007Du20638, Sept. 10, 209).

In particular, barring special circumstances, such as the right to request a change in individual laws and regulations or the right to request a change in the relevant laws and regulations, with respect to an administrative disposition, which has already occurred due to the lapse of the period for filing a lawsuit, such as the prior disposition in this case, the right to request a change shall not be deemed to have the right to request a change in such administrative disposition (see Supreme Court Decision 2005Du1104, Apr. 26, 2007).

2) We examine the instant case based on such a legal doctrine.

First of all, according to the above facts, the application in this case is an application for the cancellation of the prior disposition in this case where the period for filing a lawsuit has already lapsed and the subsequent measures accordingly are demanded. In addition, any provision that explicitly recognizes the right to file a lawsuit under the related Acts and subordinate statutes, such as the Employment Insurance Act, does not have any provision that explicitly recognizes the right to file a lawsuit, and it cannot be deemed that such right has been recognized

Meanwhile, according to the purport of the judgment of innocence of this case, the prior disposition of this case is deemed unlawful on the ground that the whole or part of it was based on erroneous determination of facts. However, even in such a case, it cannot be deemed unlawful, and thus, the prior disposition of this case becomes null and void. Since such unlawful grounds existed from the time of the prior disposition of this case, the Plaintiff could file an appeal seeking revocation by asserting the illegality of the prior disposition of this case within the period for filing a lawsuit (it cannot be deemed that the circumstances under which the representative director E of the Plaintiff was indicted with respect to the illegal receipt and demand of employment maintenance support payment, which constitutes the basic fact of the prior disposition of this case, are not a justifiable reason for which the Plaintiff did not file an appeal at that time). In view of the fact that the period for filing a lawsuit against the prior disposition of this case was excessive and that the judgment of innocence of this case became final and conclusive, it cannot be deemed that there

Ultimately, since the plaintiff filed an application of this case without the right to file an application under the laws and regulations or cooking, the defendant's measures of donation of this case cannot be viewed as a rejection disposition subject to administrative litigation.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.