208Guhap49636 Order to return new employment promotion subsidy, etc.

○ ○

The Seoul Regional Labor Agency Head of the Seoul Regional Labor Office

April 7, 2009

May 14, 2009

1. On November 27, 2008, the part that exceeds KRW 9,859,350 among the order to return the new employment promotion subsidy, the employment promotion subsidy for small and medium enterprise professionals, the employment promotion subsidy for small and medium enterprise professionals, and the order to return the reduction subsidy for small and medium enterprise working hours, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

On November 27, 2008, the Defendant revoked an order to return KRW 164, 328, 390, and a disposition to additionally collect KRW 9,859, and 350, which was issued against the Plaintiff on November 27, 2008, for the sum of the new employment promotion subsidy, the amount of money paid to the Plaintiff for the use of experts in small and medium enterprises, and the subsidies for the reduction of

1. Details of the disposition;

A. The Plaintiff is a company established for the purpose of a computer software development project on April 1999.

B. Around November 21, 2006, the Plaintiff applied for a new employment promotion subsidy to the Defendant on the ground that “a new employment was made for more than three months during the period of unemployment,” and the Defendant paid a new employment promotion subsidy of KRW 4,819,350 to the Plaintiff from May 16, 2006 to November 2, 2006.

In addition, the plaintiff applied for the payment of new employment promotion subsidy to the defendant on the ground that "the plaintiff newly employed Kim ○ who was unemployed for more than three years of age as of June 12, 2006 and was unemployed for more than three years of age," and the defendant paid the plaintiff a new employment promotion subsidy of KRW 5,040,000 in total from November 3, 2006 to August 28, 2007.

C. In addition, between May 16, 2006 and August 27, 2008, the Plaintiff received from the Defendant a total of KRW 154,469,04,040 as a new employment promotion subsidy, a specialized human resources utilization subsidy for small and medium enterprises, and a small and medium enterprise working hours reduction subsidy. The details are as follows.

D. On November 27, 2008, the Defendant issued the Plaintiff a new employment promotion subsidy of KRW 9,859,350 ( KRW 4,819,350 + KRW 5,00 + KRW 00 + KRW 5,000, KRW 00, KRW 450, KRW 950, KRW 50, and KRW 9,000, KRW 5,000, KRW 450, and KRW 5,000, KRW 5,000, and KRW 9,000, KRW 5,000, KRW 5,000, and KRW 5,000, KRW 5,000, and KRW 9,00, KRW 5,000, KRW 5,06, and KRW 9,06, etc., hereinafter referred to as “the instant subsidy”) to the Plaintiff on May 16, 206.

[Grounds for Recognition: Facts without dispute, Gap 1 to 3 evidence (each number is included; hereinafter the same shall apply) and the purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) From August 2005 to November 2005, G○○ was merely an employee who was unemployed from February 2, 2006 to June 2006, and thus, the instant disposition based on the premise that the instant person was an employee who was already determined to be employed by the Plaintiff around August 2005 and around February 2006.

(2) The Plaintiff did not receive the instant incentive by “a false or other unlawful means.” (3) Even if the Plaintiff was to receive the instant incentive, the part ordering the return of KRW 154,469,040, which is irrelevant to the instant incentive among the instant disposition, is unlawful, since the Plaintiff’s return of the instant incentive was limited to the amount received as “a false or other unlawful means” pursuant to Article 34-5(2) of the former Enforcement Decree of the Employment Insurance Act (wholly amended by Presidential Decree No. 2030, Oct. 17, 2007; hereinafter “Enforcement Decree”).

(b) Related statutes;

As shown in the attached Form.

(c) Facts of recognition;

(1) Around August 2005, Park○-○ prepared and submitted a labor contract and a written pledge accordingly to the Plaintiff. The Plaintiff had Park○-○ register job seeking without regular employment with the knowledge that he would be eligible for new employment promotion subsidy by failing to register job seeking. Around August 19, 2005, Park○-○ registered job seeking around November 20, 2005, and then retired from work in line with the Plaintiff Company’s regular working hours. The Plaintiff entered into a labor contract with Park○-○ on November 21, 2005, and applied for a new employment promotion subsidy for Park○-○ on the premise that ○○ acquired the insured status on the said day.

(2) On February 13, 2006, Kim ○ made and submitted to the Plaintiff a written pledge and a written fidelity guarantee indicating the matters to be observed while working in the Plaintiff Company. The Plaintiff, upon being aware that Kim ○ was not eligible for the new employment promotion subsidy due to his/her job seeking registration, had Kim ○○ registered his/her job seeking without being registered. Kim ○ registered his/her job seeking on March 6, 2006, and was commuting to and from work until June 12, 2006 to the Plaintiff Company’s regular working hours. The Plaintiff applied for a new employment promotion subsidy for Kim ○ on the premise that Kim ○○ acquired the insured status on the above date. The worker interview list submitted at the time of application for the employment promotion subsidy was written on June 13, 2006 from the Plaintiff’s regular working hours.

(3) On September 29, 2008, the head of the Plaintiff’s management department ○○○ stated that, in the course of investigating whether the instant incentive was unlawfully received or not, from August 2005, 13, 2006, ○○ began to work for the Plaintiff Company from February 13, 2006, and the Plaintiff Company had a period of training from August 20, 2005 to November 20, 205, ○○ was to receive training from the Defendant for the period of training from February 13, 2006 to June 12, 2006, ○○ was to receive training from the Defendant for the period of training for the Defendant for three months after the Plaintiff was employed as a new employee for the period of training from February 13, 2006 to June 13, 2006.

[Ground of Recognition: Facts without dispute, Gap 1 through 4, each entry of Eul 1 through 6, witness ○○○, testimony of ○○○○, and the purport of the whole pleadings]

D. Determination

(1) Whether gambling ○○, and Kim○ was unemployed

A) According to the provisions of Article 18 of the former Employment Insurance Act (wholly amended by Act No. 8429 of May 11, 2007; hereinafter “Act”), Article 22-2(1) and 5 of the Enforcement Decree of the Act [Attachment 1], a new employment promotion subsidy is paid to an employer who takes measures necessary for employment stability in order to prevent the structural deterioration of unemployment by facilitating employment of workers whose employment is particularly difficult, and to facilitate their entry into the job market. Under the provisions of subparagraph 5 of the same Article, a new employment promotion subsidy is paid to an employer who employs a person under the age of 29 who is under the age of 29 years from the date of applying for job-seeking to an employment security office or any other institution prescribed by the Ordinance of the Ministry of Labor, and a business owner does not retire from employment through employment adjustment for more than three months from the date of applying for job-seeking.

However, "employment" in the provisions of Article 18 of the Act and Article 22-2 (1) of the Enforcement Decree of the Act refers to an agreement that takes effect when one of the parties agrees to provide labor to the other party and the other party agrees to pay a certain number of wages to the other party. In particular, in light of the legislative intent of the incentives that have the purpose of promoting employment by paying the incentives when newly employing a person in a state of unemployment beyond the unemployment period as the prolonged unemployment has been continued, it cannot be deemed that the form or method of the relevant job, type or name of the job is the job training period or the training period.

(B) In light of the following circumstances acknowledged by the above recognition, i.e., (i) around August 2005 and around February 16, 2006, each of which was prepared and submitted for the first employment contract or a written pledge, etc. by Park○○ and Kim○○, etc., and (ii) from around February 16, 2006, the Plaintiff was at all times at work during the period from around February 16, 2006 to the acquisition date of the insured status for employment insurance, and thus, the Plaintiff was unable to engage in job-seeking activities in another company during that period. (ii) On-the-job job training conducted on Park○, etc. for the said period was necessary for the Plaintiff’s business conducted at the Plaintiff company. In light of the above circumstances, from around August 2005 and around February 16, 2006, the Plaintiff provided labor for the purpose of receiving wages from the Plaintiff’s workplace as compensation for the Plaintiff’s work, and the Plaintiff’s assertion that it is reasonable to deem that it was a nominal.

(2) Whether the Plaintiff received grants by fraud or other improper means

If it is deemed that Park ○○ and Kim ○ had already been employed by the Plaintiff’s workplace around August 2005 and around February 16, 2006, it would not be deemed that the requirements for receiving the new employment promotion subsidy for those who had been unemployed for a period exceeding the unemployment period as stipulated in Article 22-2(1) of the Enforcement Decree of the Act were not satisfied. Nevertheless, the Plaintiff reported his employment date differently from the fact and received the new employment promotion subsidy. Accordingly, this constitutes a supply and demand through fraudulent or other illegal means, and thus, the Plaintiff’s assertion of disputing this is also without merit.

(3) Whether the return order for the portion irrelevant to the instant subsidy is appropriate

A) According to the provision of Article 26-5(1) of the Act, the Minister of Labor may order the return of the subsidy received by fraud or other improper means. It does not necessarily mean that the Minister of Labor may order the return of the subsidy not received by fraud or other improper means. Article 26-5(2) provides that "in cases where the return is ordered pursuant to the provision of paragraph (1) of the same Article, the amount equivalent to or less than the amount received by the relevant false or other improper means may be additionally collected according to the standards prescribed in the Ordinance of the Ministry of Labor." It seems that the said false or other improper means are stated as above to re-specific the reasons stated in paragraph (1) and that the scope of additional collection is limited to the amount received by the above fraudulent or other improper means within the scope of the amount received by the above 0-mentioned provision, and that the order for return of all kinds of subsidies or subsidies for employment stability can only be deemed to have the nature of the subsidy received by the above 0-mentioned provision and other improper means, and thus, it can be said that the above provision has the nature of restoration to the original state.

B. With respect to the remainder of 164, 328, 390 won in total that the Defendant ordered the Plaintiff to return, excluding the sum of the instant incentives 19, 859, 350 won in total among the subsidies for small and medium enterprise working hours reduction, the Plaintiff shall make a false or other unlawful means with respect to the remainder of the said subsidies.

The plaintiff did not prove that he was supported, and if so, the amount that the plaintiff should return to the defendant is limited to this case's incentive.

(4) Sub-decisions

Therefore, among the instant disposition that the Defendant rendered against the Plaintiff on November 27, 2008, the order of return of KRW 19,859,350 and the disposition of additional collection equivalent to the same amount is lawful. However, the order of return of the portion exceeding the instant incentive is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Jin-man

Judge Lee Lee Sang-hoon

Judges White-in-law

Related Acts and subordinate statutes

former Employment Insurance Act (wholly amended by Act No. 8429, May 11, 2007)

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

3. The term "vocational" means the insured's departure from employment despite having the intention and ability to work;

unemploymentable means the state of employment.

Article 18 (Support for Promotion of Employment of the Aged, etc.)

Under the conditions as prescribed by the Presidential Decree, the Minister of Labor may, in order to promote the employment of the aged and other persons having particular difficulty in finding employment (hereafter in this Article, referred to as the “aged, etc.”) under the ordinary conditions of the labor market, provide necessary assistance to the workers in question who are employed newly or taking other measures necessary for their employment security, or who are employed by the employer or other employers.

Article 26-5 (Restrictions, etc. on Support due to Illegal Acts)

(1) The Minister of Labor shall ensure employment security and vocational skills development under this Chapter by fraud or other improper means.

for a person who has received or intends to receive support from a project under the conditions as prescribed by the Presidential Decree.

limit or order the return of the already supported thing.

(2) The Minister of Labor shall, when ordering the return pursuant to paragraph (1), set aside additionally by the Ordinance of the Ministry of Labor.

amount equivalent to the amount received by such fraud or other improper means in accordance with the standard;

may be collected in an amount not exceeding the limit of

(3) The Minister of Labor shall, under the conditions as determined by the Minister of Labor, provide for a person who fails to pay insurance premiums.

Support for employment security and vocational skills development projects may not be provided.

Article 84 (Delegation and Entrustment of Authority)

The Minister of Labor may delegate part of his authority under this Act to the heads of employment security offices, or entrust it to such persons as determined by the Presidential Decree.

Enforcement Decree of the former Employment Insurance Act (wholly amended by Presidential Decree No. 2030 on October 17, 2007)

Article 22-2 (New Employment Promotion Subsidy)

(1) The Minister of Labor shall, pursuant to Article 18 of the Act, determine employment security offices by business owners and other Ordinance of the Ministry of Labor

office in excess of the period of unemployment for each subject prescribed in attached Table 1 counting from the date of application for jobs;

Insured workers (including short-term workers whose term of employment contract is short-term workers, etc.)

Any person employed as a qualified worker, and any worker employed through employment adjustment from March before to June after the employment.

In cases of not leaving a job, new employment promotion subsidy shall be paid: Provided, That new workers shall be paid.

(a) A business owner prior to the most recent severance from employment (a merger with, or acquisition by transfer of, the business owner prior to the most recent severance

Where a business owner related to the business and prescribed by the Ordinance of the Ministry of Labor is employed.

such payment shall not be made.

(2) The amount of the new employment promotion subsidy referred to in paragraph (1) shall be the rate of wage increase annually by the Minister of Labor, and the labor

amount calculated by multiplying the amount publicly announced in consideration of the conditions of the head, etc. by the number of employees;

12. Payment shall be made between December (where the employment period of the relevant worker is less than 12 months, the relevant employment period). In this case, the labor shall be made.

The amount publicly announced by the head of the department may be determined differently according to the continuous service period.

(6) Matters necessary for applying for and paying new employment promotion grants shall be determined by Ordinance of the Ministry of Labor.

[Attachment 1]

The period of unemployment by person eligible for the new employment promotion subsidy (related to Article 22-2 (1))

A person shall be appointed.

Article 35-4 (Restriction on Payment of Subsidies, etc. Due to Illegal Acts)

(1) The Minister of Labor shall, pursuant to Article 26-5 (1) of the Act, take the following measures by falsity or other illegal means:

For a person who receives or intends to receive subsidies, incentives, or costs of workplace skill development training

of the remaining subsidies, incentives, or subsidies or incentives that the remaining subsidies or incentives are required to be granted, and the job ability of such subsidies or incentives

Expenses for vocational skills development training shall not be paid, and subsidies and incentives and vocational skills development training expenses already paid.

The return shall be ordered for use.

1. Articles 15-2 through 15-6, 17, 18, 19-2, 20, 22, and 22-2 through 15-6;

Articles 22-5, 23, 23-2 through 23-4, 23-6, 23-7, 24 and 35

Article 3-3 (Subsidies or Subsidies)

(2) Subsidies referred to in the subparagraphs of paragraph (1) shall be granted by fraud or other improper means pursuant to Article 26-5 (1) of the Act.

For a person who has received or intended to receive subsidies or vocational ability development training costs, the head of the subsidy and

From the date when funds or costs of workplace skill development training have been received or intended to be received;

No subsidies, incentives, or expenses for workplace skill development training shall be paid for one year, and the Minister of Labor shall pay them.

An order to return subsidies, incentives, or expenses for workplace skill development training paid during the period of restriction;

section 23(3).

(3) The refund under paragraph (1) or (2) (including the additional collection under Article 26-5 (2) of the Act).

(3) The person who received the order shall pay the notified amount within thirty (30) days of the receipt of the order.

(1) In such cases, the payment shall be made on a lump-sum basis, but the amount to be paid exceeds KRW 10,000,000.

If the estimated premium of the business of the year exceeds one half of the estimated premium, it shall be divided under the conditions as determined by the Minister of Labor.

(2) such payment may be made.

(4) The person who is ordered to return pursuant to the provisions of paragraph (1) or (2) shall make an objection to liability for payment within the fixed period

If the person fails to perform his/her duty, subsidies, incentives, or occupation for the period of non-performance of his/her duty.

No cost of ability development training shall be paid.

Article 123 (Delegation, etc. of Authority)

(1) The Minister of Labor shall, pursuant to Article 84 of the Act, exercise the authority on the following matters:

shall be delegated to the chief of the office.

4. Restriction on the support due to the illegal acts under the provisions of Article 26-5 of the Act;

Enforcement Rule of the former Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 296 on February 25, 2008)

Article 43-9 (Additional Collection, etc. Due to Wrongful Acts)

(1) The amount additionally collected under Article 26-5 (2) of the Act shall be false or other unlawful means out of the amount paid.

amount equivalent to the amount recognized as such by the method.

(2) Voluntary acts under paragraph (1) shall be conducted before the investigation of the offender himself/herself or his/her place of business.

No additional collection may be made against a person who has reported.

former Labor Standards Act (amended by Act No. 8372 of April 11, 2007)

Article 14 (Definition of Workers)

The term “worker” used in this Act means a person who provides a business or workplace with labor for the purpose of wages, regardless of the type of occupation.

Article 18 (Definition of Wages)

For the purpose of this Act, the term “wages” means wages, salaries, and any other money or valuables paid by an employer to a worker for his work by whatever name. Finally.