2017Na36387 Undue gains

Korea

A

Seoul Western District Court Decision 2017Gaso357643 Decided June 22, 2017

November 2, 2017

December 28, 2017

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below is revoked, and the plaintiff's claim corresponding to the revocation

The defendant pays to the plaintiff 3,400,000 won with 5% interest per annum from December 28, 2017 to December 28, 2017 and 15% interest per annum from the next day to the day of full payment. 2. The defendant's remaining appeal is dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 6,80,000 won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. From June 201, the Defendant has operated a marina business with the trade name of "C" in Seoul Jung-gu, Seoul, and is currently running a marina business with the same trade name in Yongsan-gu, Seoul.

B. The Defendant: (a) between June 11, 2012 and February 6, 2013, and (b) between October 1, 2012 and May 1, 2013, and (c) between October 1, 2012 and May 1, 2013, employed F as a massage. The Defendant applied for employment promotion subsidies under Article 23 of the Employment Insurance Act and Article 26 of the Enforcement Decree of the same Act to the Plaintiff (Seoul Local Labor Agency) and received the following subsidies from the Plaintiff:

A person shall be appointed.

D. However, around February 6, 2013, E retired from the Defendant’s workplace, and the Council on the Loss of the Insured by the Insured, on the grounds of the loss of the insured status of E are indicated as “retirement due to other company circumstances - a recommendation agency due to business adaptation” (the first business shortage was corrected as “the business division adaptation” upon the Defendant’s request for correction from April 10, 2013).

E. The head of the Seoul Regional Employment Agency found out the Defendant’s place of business that violated the provision of the above employment insurance-related Acts and subordinate statutes and notified the Defendant of the decision to recover unjust enrichment regarding the above employment promotion subsidy of KRW 6.8 million on several occasions from March 30, 2016.

(f) Relevant parts of the guidelines for operating the employment promotion support system in the Ministry of Employment and Labor are as follows:

||, 지원요건6. 지원제외 사유○ 위 요건을 충족한 실업자를 채용하고 3개월 이상 고용을 유지했다. 하더라도 채용한 근로자가 아래의 어느 하나에 해당하는 경우는 지원금이 지급되지 아니함.⑦ 사업주가 고용촉진 지원금 지급대상자를 고용하기 전 3개월부터 고용 후 12개월까지고용조정으로 사업자 소속 근로자를 퇴직시키는 경우 지원이 되지 않으며, 지원금을 받은경우에는 반환하여야 함* 고용촉진 지원금 대상 근로자보다. 나중에 고용된 근로자는 감원방지의무 대상 근로자에서 제외** 사업주에 의한 고용조정이 아닌 근로자의 귀책사유로 인한 징계해고나 정년, 계약기간만료, 근로자의 자발적인 퇴직은 제한되지 아니함

【Ground for recognition】 The fact that there has been no dispute, Gap’s 1 through 14, 17, 18, 20 through 23, Eul’s each entry in the evidence No. 1, and the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the parties' assertion

1) Plaintiff

The Defendant applied for employment promotion subsidy to the Plaintiff and received a total of KRW 6.8 million (i.e., E subsidy of KRW 3.4 million + F subsidy of KRW 3.4 million). However, according to the Enforcement Decree of the Employment Insurance Act, the Defendant’s dismissal of workers due to employment adjustment during the prescribed period (the reduction prevention period) is prohibited. Nevertheless, the Defendant was unfairly dismissed against his will during the above period. Accordingly, the Defendant should return the subsidy of KRW 3.4 million to E, and ② in the case of F, even if his retirement is not voluntary, the retirement itself is not a reason for recovery, but a violation of the above E, and thus, the subsidy of KRW 3.4 million should also be returned.

2) Defendant

① The Defendant appeared to be in bad faith by viewing Handphones while on duty and making it difficult to correct despite warning, and was inevitably dismissed by failing to correct it. This does not constitute “employment adjustment” under the above Enforcement Decree, and thus does not fall under the ground for payment of the subsidy site (e.g., cancellation and recovery). ② Even if the Defendant breached its duty to prevent reduction of sources against E, it is unreasonable to seek the return of the subsidy to F based on the ground for payment of the subsidy site (e.g., cancellation).

C. Determination as to whether the Defendant violated the duty to prevent depreciation (E)

In light of all the circumstances that are acknowledged by adding Gap evidence No. 27 to the above evidence, i.e., the defendant reported the reason at the time of dismissal, i.e., the defendant reported the reason as "management difficulties", i.e., the defendant corrected 'after the dismissal', ii 'E voluntarily retired from office on the ground that 'the defendant has retired from office', i.e., the defendant has retired from office 'the fact that 'E voluntarily retired', 'the defendant has retired from office 'the fact that 'the defendant has retired from office', iii 'the prior notice of dismissal or the reason for dismissal has not been notified in writing at the time of dismissal 'the dismissal', 'E' is judged to have been withdrawn from office through the employment adjustment of the defendant, who is the business owner. On the contrary, it is insufficient to recognize that the written evidence No. 6, 7-1, 2, and 8 are sufficient to properly

Therefore, the defendant, on or around February 6, 2013, who was within the reduction prevention period stipulated in Article 26 (3) 4 of the Enforcement Decree of the Employment Insurance Act, retired from employment E by violating his/her duty, which constitutes grounds for exclusion from the payment of employment promotion subsidy under the above Act and subordinate statutes.

1) The subsidy system under Article 23 of the Employment Insurance Act and Article 26(1) of the Enforcement Decree of the same Act was introduced to promote employment of those vulnerable to employment by providing subsidies to employers who employ them where they are unemployed for a certain period after filing an application for job seeking under the ordinary conditions of the labor market (see Supreme Court Decision 2010Du28373, Aug. 18, 201).

Article 26 of the Enforcement Decree of the above Act provides that subsidies for promotion of employment shall be granted in certain cases where an employee is employed as an employee, and where there are certain reasons such as leaving employment through employment adjustment during the period for prevention of reduction of the amount of subsidies, such subsidies shall not be granted. On the other hand, Article 35 of the above Act and Article 56 of the Enforcement Decree of the above Act provide for the return of subsidies for the supply of and demand for fraudulent payment (any fraudulent or other wrongful means). On the other hand, there is no explicit provision regarding subsidies to be returned by an employer on the grounds that the employer has ex post facto reasons such as leaving employment through employment

However, in addition to the legislative intent of the above subsidy system, Article 26 (2) of the Enforcement Decree of the above Act provides that each part of the vulnerable employment is individually insured, and Article 26 (4) of the above Act provides that the amount of the subsidy for employment promotion shall be calculated by multiplying the amount publicly announced by the Minister of Employment and Labor in consideration of wage increase rate, labor market conditions, etc., by the number of workers employed each year, but it shall not exceed 75/100 of the wage to be paid by the employer during the period eligible for payment. Thus, it is reasonable to interpret that the scope of the subsidy to be paid by the employer as well as the scope of the subsidy

In addition, since the subsidies are introduced for the promotion of employment of vulnerable workers, even if an employer has adjusted the employment of the relevant worker during the period for preventing the reduction of the amount of subsidies for the relevant worker, the effect of employment promotion, which is the purpose of the subsidies, at least for the relevant worker, may be deemed to have been achieved if the relevant worker continues to work for the period for preventing the reduction of the amount of subsidies for the relevant worker, excluding the relevant worker subject to employment adjustment, or has left his/her position due to his/her personal reasons. Furthermore, if the above adjustment of employment is ordered to return all the subsidies paid to the relevant worker on the ground that the said adjustment of employment was made during the period for preventing the reduction of the amount of subsidies for the relevant worker, the employer’s continued to work may be an economic burden, and even if the relevant worker leaves his/her employment through the adjustment of employment, the same applies, and thus, it may result in a violation of the purpose of introducing the subsidies. In light of this, the cancellation and return of the subsidies due to the adjustment of employment, etc. shall be interpreted to the extent that does not actually contribute.

Therefore, in cases where a business owner has adjusted the employment of the relevant employee during the period of reduction of the amount of subsidies for the relevant employee, (a) the purpose of promoting employment is not to be achieved with respect to the relevant employee subject to employment adjustment; and (b) the payment requirement of the Enforcement Decree of the Act providing for the payment of subsidies would not be satisfied if he/she does not leave his/her position due to employment adjustment; thus, it is reasonable to allow the employee to fully cancel and return the subsidies without considering his/her actual work. On the other hand, with respect to the employees subject to employment adjustment other than those subject to employment adjustment during the period of reduction of the amount of subsidies, even if the above adjustment occurred during the period of prevention of reduction of the amount of subsidies, the reason alone does not affect the effect of employment promotion, and the so-called alternative employment due to the above adjustment can achieve the purpose of cancellation and return of the subsidies for the relevant employee subject to employment adjustment, barring any special circumstance to be seen otherwise, it is necessary to exercise caution in cancelling and returning the subsidies for other employees subject to employment adjustment, and rather, it can be deemed consistent with the legislative intent and equality of 20.

2) In light of the above legal principles, it is reasonable to revoke the subsidy paid in full and return it in unjust enrichment as the grounds for payment have ceased to exist. However, it is reasonable to deem that the grounds for payment have ceased to exist in relation to the subsidy to F, who is another worker, who is not an employee subject to employment adjustment, or that it is not possible to claim the return of the subsidy after cancelling the subsidy, and there is no other special circumstance or ground to deem that the subsidy should be returned.

D. Sub-determination

As of the date of notification of the decision to recover unjust enrichment of KRW 3.4 million and the date of notification of the decision to the Plaintiff, the Defendant is obligated to pay damages for delay calculated at each rate of 5% per annum prescribed by the Civil Act from March 21, 2017 to December 28, 2017, the date following the delivery date of the copy of the complaint of this case sought by the Plaintiff, which is the day of notification of the decision to recover unjust enrichment of KRW 3.4 million, and from March 21, 2017, which is deemed reasonable for the Defendant to dispute as to the existence or scope of the obligation.

3. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no ground. However, since the judgment of the court of first instance (the plaintiff's claim in whole) partially differs from this conclusion, the part against the defendant in excess of the above recognition amount among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed,

The presiding judge, judge and mining interference

Judges Kim Yong-han

In case of being unable to affix a signature or seal to judge Kim Jae-nam leave

1) Although a labor contract is deemed to work as of July 1, 2012, according to the case of the loss of each insured (Evidence No. 21) etc.

From June 11, 2012, the insured is qualified as an employee (insured).

2) This provision was respectively amended by Presidential Decree No. 2433, Dec. 30, 2016, and amended by Presidential Decree No. 27738, Jan. 25, 2013; and use.

In other words, it was changed to ‘employment promotion subsidy' under the current law, but it was used as a basis for the old law at the time of the payment of the subsidy in this case.

section 3 (Presidential Decree No. 2433 of January 25, 2013) of the Addenda to the Enforcement Decree of the above Act, the amended provisions shall apply after enforcement.

from the time when the insured has employed the person as the insured.

(iii) Article 26 (Subsidies for Promotion of Employment)

No subsidies for promotion of employment under paragraph (1) shall be granted in any of the following cases:

4. Workers by adjustment in employment between three months before and 12 months after employment of a business owner who is eligible for subsidies for promotion of employment.

(excluding workers employed later than workers eligible for subsidies for promotion of employment)

4) In addition, the subsidy already paid is not revoked and the return is not ordered, but is prescribed in Article 26(3)4 of the Enforcement Decree of the said Act.

for a period of three months thereafter, taking into account whether a subsidy is not granted, that is, when determining whether a new subsidy is granted.

It shall be deemed unreasonable.