(영문) 부산고등법원 2013.5.3. 선고 2013누437 판결

The judgment of the first instance is revoked. The defendant's disposition of early re-employment allowance against the plaintiff on August 16, 2011 and the disposition of early re-employment allowance against the plaintiff is revoked (the "On April 12, 2012," which the plaintiff entered in the complaint, seems to be erroneous).

Reasons

1. Basic facts

A. On January 1, 1978, the Plaintiff entered a company B (hereinafter “B”) and worked for 32 years, and retired on December 31, 2009, and on January 25, 2010, the Plaintiff applied for recognition of eligibility for employment insurance benefits from the Defendant to the Defendant on January 25, 2010, thereby obtaining recognition of eligibility for employment insurance benefits from the Defendant for 240 days [the fixed benefit payment amount corresponding to the insured period of 50 years or older as of the date of separation, the insured period of 10 years or longer (14 years or longer as of the date of insurance)], the benefit period of 40,00 won (the maximum amount of 50% of the average wage before the date of employment exceeds 40,000 won) until December 20, 2010 (hereinafter “approval of the primary eligibility for benefits”).

B. The Defendant suspended job-seeking benefits pursuant to Article 59 of the Employment Insurance Act for at least KRW 100 million (from January 25, 2010 to April 24, 2010, which is the date on which the Plaintiff filed a report) for three months (from January 25, 2010 to April 24, 2010). However, on April 22, 2010, the Plaintiff was employed as a worker on the “D” site and did not receive job-seeking benefits due to the above eligibility. The Plaintiff was employed on the above “D” site, and then withdrawn on August 31, 2010, thereafter, applied for the recognition of the eligibility for benefits under the Employment Insurance Act to the Defendant on September 27, 2010, and then received from the Defendant the maximum amount of the fixed benefit payment days [the maximum amount of job-seeking benefits for more than 50 days and not more than 10 years and not more than 40 days before the expiration of the grace period (hereinafter “C”).

D. Thereafter, the Plaintiff received from the Defendant the total amount of KRW 3,400,000 for job-seeking benefits, subject to the recognition of unemployment equivalent to 85 days from October 4, 2010 to January 3, 201, as listed in the following table, on four occasions.

A person shall be appointed.

E. On January 4, 2011, the Plaintiff was re-employed as a director at C’s head office on January 4, 201, and served for more than six months until July 4, 201.

F. On July 5, 2011, the Plaintiff filed a claim for early re-employment allowance with the Defendant on the ground of the aforementioned re-employment. On August 16, 2011, the Defendant rendered a claim for the payment of the said allowance to the Defendant, on the ground that “A, a re-employment workplace, constitutes the same business owner as “D, the final place of business,” on the ground that the said allowance constitutes the same business owner as “D.” (hereinafter “instant disposition”).

G. On August 23, 2011, the Plaintiff filed a request to revoke the instant disposition with an employment insurance examiner, but was dismissed on January 12, 2012. On February 27, 2012, the Plaintiff filed a request to the Employment Insurance Review Committee for reexamination, but was dismissed on April 9, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The fixed payment days for the employment insurance benefits recognized to the Plaintiff, 2.40 days, the daily amount of job-seeking benefits amounting to KRW 40,000,000, the Plaintiff is recognized as having been on December 31, 2009 as having worked for 32 years from B, and the Plaintiff worked for 4 months and 9 days from the “D” site, which is performed in C, is merely an automatic extension of the benefit period.

Therefore, Article 84 (1) 1 (a) (proviso) of the Enforcement Decree of the Employment Insurance Act, which meets the criteria for limiting the payment of early re-employment allowance, shall be deemed as B in the case of re-employment by an eligible recipient in the last severance from employment. The business owner shall be deemed as B. The Plaintiff’s re-employment to the headquarters C on January 4, 201 cannot be deemed as the case of re-employment by an eligible recipient in the last severance from employment. Thus, the Defendant’s disposition of this case

2) In addition, in the decision of the Ministry of Health and Welfare (E) dated December 8, 2010, the Ministry of Health and Welfare decided that even if the same business owner re-employments, it is reasonable to cancel the decision of recovery of early re-employment allowance if the re-employment does not unfairly receive early re-employment allowance with the business owner's mother, and that in Supreme Court Decision 2009Du19892 Decided December 8, 201, "the early re-employment allowance" is "for minimizing the period of job-seeking and encouraging stable re-employment by paying a certain amount of money equivalent to the unpaid portion of the number of days of job-seeking benefits to the beneficiary before receiving all job-seeking benefits."

However, construing that the Defendant’s “D” workplace where the Plaintiff was employed for a short time as daily employed workers and the business owner of the workplace where the Plaintiff was employed after re-employment is the same only when the Defendant re-employed the business owner who was employed in the last place of employment, without considering the aforementioned provision’s intent of payment of business allowances and the purport of the provision on payment restriction, was determined based on the formal phrase under the Enforcement Decree of the Employment Insurance Act, without considering the above provision’s intent of payment restriction, and thus, is unlawful.

B. Determination

1) Determination on the Plaintiff’s first argument

According to Article 43 of the Employment Insurance Act, a person who intends to obtain job-seeking benefits shall obtain recognition from the head of an employment security office of the fact that he/she satisfies the requirements for receiving job-seeking benefits under Article 40 (1) 1 through 3, 5, and 6 (hereinafter referred to as "beneficiary"). Meanwhile, the head of an employment security office shall, if the applicant satisfies all the requirements that "the applicant has retired from employment as an insured before he/she is employed in the last severance business," "the fact that he/she has not received job-seeking benefits before he/she has retired from employment" or "the fact that he/she has retired from employment before he/she has retired from employment" as the basis of the last severance. If the insured worker is less than one month as at the time of the most recent severance, it is difficult to determine whether to obtain job-seeking benefits based on the most recent severance business (Article 40 (3)), and if the insured worker newly obtains recognition of eligibility for job-seeking benefits during the period under Articles 48 and 54 (1) of the former Employment Insurance Act, it shall be paid within 20.

In full view of the above provisions, even if the Plaintiff was employed as a worker at the “D” site performed by C on April 22, 2010 after obtaining recognition of the primary recipient qualification, the benefit period according to recognition of the above recipient qualification does not extend to the above period, and the benefit period shall not be extended to the above period, and it shall expire on December 20, 2010, which is the expiration date of the first recipient qualification period.

In addition, according to the evidence evidence Nos. 1, the plaintiff was employed at the "D" site during the benefit period according to the approval of the primary eligibility for benefits. On September 27, 2010, the plaintiff prepared an application for recognition of the secondary eligibility for benefits and submitted it to the defendant on September 27, 2010, thereby obtaining recognition of the secondary eligibility for benefits. In applying Article 43 of the Employment Insurance Act prior to the above recognition, the plaintiff was recognized as the primary eligibility for benefits after retirement from B, but the plaintiff was employed at the "D" site without receiving job-seeking benefits within the benefit period, and then retired from the job, thereby satisfying all the requirements of the main sentence of Article 43 (3) of the Employment Insurance Act, while the employment period at the "D" site does not fall under the proviso of Article 43 (3) of the Employment Insurance Act.

Therefore, the recognition of the secondary eligibility of the plaintiff is not based on C's business, which is the most recent severance from employment, but based on B's business, which is not a daily employed worker, which is the last severance from employment, and job-seeking benefits should be paid to the plaintiff based on the secondary eligibility newly recognized under Article 43 (4) of the Employment Insurance Act.

As seen earlier, even if the number of days of supply and demand based on the recognition of the primary eligibility for benefits and the secondary eligibility for benefits are the same, they are merely reaching the upper limit, as alleged by the Plaintiff, and there is a difference between the first place of business and the second place of employment that served for a long period of time as a part of the first place of business and the second place of employment that served for a short time as a part of the second place of employment as alleged by the Plaintiff, and thus, it cannot be viewed that there might be an unfair

Meanwhile, Article 64(1) of the Employment Insurance Act provides that, in order to minimize the period of unemployment of unemployed persons and encourage prompt re-employment in a stable occupation, job-seeking benefits shall be paid as early re-employment allowances if an eligible recipient re-employments in a stable occupation and if the eligible recipient satisfies the standards prescribed by the Presidential Decree, and accordingly, Article 84(1)1 of the Enforcement Decree of the same Act provides that the eligible recipient shall be paid part of the unpaid job-seeking benefits as early re-employment allowances if he/she is employed for at least six consecutive months in the business owner re-employment. However, the proviso to Article 84(1)1 of the same Act provides that in order to prevent the abuse of the system, the eligible recipient shall be excluded from

However, as seen earlier, the Plaintiff’s recognition of the secondary eligibility is based on C’s business, and the business owner who has retired from the last place of employment under Article 84(1)1 proviso of the Enforcement Decree of the Employment Insurance Act is deemed to be C as the basis for recognition of the secondary eligibility for benefit.

Therefore, the Plaintiff’s re-employment at C’s headquarters within the benefit period after being employed at C’s “D” site and retired after being recognized as the secondary recipient’s eligibility, is a case of re-employment. Therefore, regardless of whether the re-employment is objectively recognized as a result of active job-seeking activities, the instant disposition is legitimate.

Therefore, this part of the plaintiff's assertion is without merit.

2) Judgment on the second argument by the Plaintiff

The right to receive various benefits under the Employment Insurance Act is inseparably combined with the right to receive social security benefits and both property rights. Although some property rights are in the nature of property rights, they cannot be affected by strong social security law, and if both the right to receive social security benefits and the right to property are inseparably mixed, the legislative officer may identify them as one whole and put more emphasis on any of the elements in determining the specific contents of the right to receive benefits. Therefore, in forming the specific contents of the right to receive benefits, the legislators can independently regulate them to be appropriate for the achievement of legislative purpose, and the necessary policy decisions and decisions are given to the legislative discretion (see Constitutional Court Order 97Hun-Ma33, Apr. 29, 199).

Based on the above legal principles, Article 64(1) of the Employment Insurance Act provides that a person eligible for job-seeking benefits shall pay part of the unpaid job-seeking benefits as early re-employment allowance if the person eligible for job-seeking benefits is re-employed at a stable occupation, and accordingly, Article 84(1)1 of the Enforcement Decree of the same Act provides that the person eligible for early re-employment allowance shall be paid as early re-employment allowance if the person eligible for job-seeking benefits continues to be employed for not less than 6 months, while the proviso of the same Article provides that the person eligible for early re-employment allowance shall be excluded from the above payment standard in order to prevent abuse

The requirements for and restrictions on the payment of the early re-employment allowance as mentioned above are left to the legislative discretion as seen earlier. Thus, it cannot be interpreted differently from the language and text stipulated in the statutes, considering only the purport of the early re-employment allowance in order to minimize the actual period of the unemployed and encourage their prompt re-employment in a stable occupation, and the purport of the provision on the restriction on payment in order to prevent abuse of the system.

In addition, the resolution of the Anti-Corruption and Civil Rights Commission (the plaintiff asserts that the resolution of the Ministry of Health and Welfare is the resolution of the Ministry of Health and Welfare, but it appears that the resolution of the Anti-Corruption and Civil Rights Commission presented its opinion in accordance with Article 46 (2) of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission) cited by the plaintiff is merely an expression of opinion about the re-employment of the fixed-term teacher at schools belonging to the same City/Do office of education. This case cannot be invoked in other cases, and the contents of the resolution cannot be viewed as binding upon the court. Furthermore, the Supreme Court's decision cited by the plaintiff is not an issue whether the eligible recipient was re-employed by the "the business owner who left his employment after

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed and it is so decided as per Disposition.