(영문) 서울고등법원 2018.7.20. 선고 2017누83425 판결

The judgment of the first instance shall be revoked. On March 23, 2017, the Defendant’s disposition of restricting payment, ordering the Plaintiff to return the amount of unjust enrichment, and the disposition of additional collection shall be revoked.

Reasons

1. Quotation of the reasons for the judgment of the first instance;

The reasoning of this judgment is as follows, and the Plaintiff’s additional assertion is identical to the reasoning of the judgment of the first instance, except for the determination as to the Plaintiff’s additional assertion pursuant to Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

○, 12 pages 2, “Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27352, Jul. 19, 2016; hereinafter referred to as “former Enforcement Decree of the Employment Insurance Act”)” is added to “Enforcement Decree of the Employment Insurance Act.”

The "Enforcement Decree of the Employment Insurance Act" of 17 to 18 and 20 pages 3 to 18 pages 7 shall be applied to "former Enforcement Decree of the Employment Insurance Act".

"No. 18" in the 4th 3th 1st 3th 1st 3th 3th 3th 3th 3th 3th 4th 12th 4th 12th 200, as follows: "The following was added to the 12th 12th 4th 12th 12th 200; (5) B was determined to be employed on the same day as the result of an interview with a person in charge of the defendant in the company of the plaintiff at around March 17, 2016; and E entered the results of the accompanying interview in the workshop (internal net) managed by the Korea Employment Information Service on March 18, 20

Pursuant to the following, the witness D's testimony is not reliable: "Partial entry of evidence A 18-1 and witness D's testimony of the first instance court shall not be reliable: 7 pages 19 shall be added to the following:

(1) The subsidies for promotion of employment paid to a business owner before this Act enters into force shall be deemed the promotional subsidy for employment under the amended provisions of Article 26.

(2) Notwithstanding the provisions of Article 26 (2), (3) 4 through 6, (4) and (5), and the part other than the subparagraphs of paragraph (6) of the same Article, the previous provisions shall apply to the requirements for payment of incentives for promotion of employment, the period of payment, the amount of payment, and the number of the insured insured workers for a business owner who employs the relevant unemployed as the insured pursuant to Article 26 (1) before this Decree enters into force.

2. Judgment on the Plaintiff’s additional assertion

A. The plaintiff's assertion

Article 26(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22603, Dec. 31, 2010) (amended by Presidential Decree No. 22603, Dec. 31, 2010), if a business owner hires “person who has completed the employment support program”, the requirements for receiving subsidies for employment promotion meet the requirements for receiving subsidies.” After completing the employment support program, “a new employee was employed through good offices by the employment security office, etc.” was excluded from the requirements for receiving subsidies for employment promotion. Therefore, the Plaintiff’s representative director would be employed if he/she completed the employment support program after having first interview B among the police officers on March 2016, and thereafter, on March 31, 2016, if B completed the employment support program and finally employed B as of April 1, 2016, there is no obstacle to the receipt of subsidies for employment promotion.

B. Determination

The fact that the Plaintiff employed B on March 22, 2016 is recognized as above. The evidence submitted by the Plaintiff alone is insufficient to recognize the Plaintiff’s assertion that the Plaintiff employed B on April 1, 2016, after completing the employment assistance program in B.

Furthermore, if the above quoted evidence and evidence No. 3-1 were to be added to the purport of the entire argument, the plaintiff may acknowledge the fact that the plaintiff was attached to the standard employment contract signed on April 1, 2016 between B and the defendant when applying for the payment of the subsidy for promotion of employment to B, and accordingly, the plaintiff was paid the subsidy from the defendant as above.

As above, insofar as the Plaintiff employed B who did not complete the employment assistance program, this does not meet the requirements for the payment of the “employment promotion subsidy” under Article 26(1)1 of the former Enforcement Decree of the Employment Insurance Act. Nevertheless, if the Plaintiff received the instant subsidy by attaching a labor contract document stating the date when B was employed on April 1, 2016, which was after the completion of the employment assistance program, as if the Plaintiff had employed B, then the instant subsidy constitutes “amount of subsidy received by false or other unlawful means” under Article 35(1) of the Employment Insurance Act, and the requirement that “the Plaintiff would have newly employed the relevant employee by means of good offices, etc. excluded from the requirements for receiving the employment promotion subsidy is not deemed to have affected the payment of the instant subsidy.

Therefore, the plaintiff's assertion is not accepted.

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit.