(영문) 서울행정법원 2012.9.6. 선고 2012구합4340 판결

A. On March 1, 2006, the Plaintiff entered into an employment contract with the Seoul Special Metropolitan City and the Seoul Special Metropolitan City for a contract term of one year, and entered into an employment contract with a local contract-based public official. By February 28, 2011, the Plaintiff renewed the contract each year and performed traffic order control at the Seoul Special Metropolitan City

B. On May 15, 2009, the Director of the Seoul Special Metropolitan City Business Director filed a report on the acquisition of insured status with the Defendant on March 1, 2009, the date of acquisition of insured status of the Plaintiff’s employment insurance. On January 12, 2010, the Defendant filed a lawsuit seeking the cancellation of the Plaintiff’s employment insurance contract with the Seoul Administrative Court’s ex officio decision on September 22, 2008, which is the date of appointment of public officials under Article 5 of the Addenda (Presidential Decree No. 21015, Sept. 18, 2008) of the Enforcement Decree of the Employment Insurance Act (Presidential Decree No. 21015, Sept. 22, 2008, which is the date of enforcement of the above Enforcement Decree.

D. According to the purport of the above final judgment, the Defendant notified the Plaintiff of the fact that the date of acquisition of insured status was the date of acquisition of insured status and the date of loss of insured status as of March 1, 201, respectively.

E. Meanwhile, from July 1, 2011, the Plaintiff was re-employed as a public official in the Seoul Metropolitan Government as a local contracting officer, and the Seocho-gu Office C department performed the duty of regulating illegal parking.

F. On December 27, 2011, the Plaintiff filed a civil petition with the Defendant to pay job-seeking benefits. However, on January 26, 2012, the Defendant rendered a disposition rejecting the Plaintiff’s application for payment of job-seeking benefits (hereinafter “instant disposition”) on the ground that, since July 1, 2011, the Plaintiff’s illegal parking control personnel in the Seocho-gu Seoul metropolitan department was not unemployed by acquiring insured status as employment insurance, the Plaintiff is not subject to the application for recognition of eligibility for unemployment benefits.

[Ground of recognition] Facts without dispute, Gap 2 through 4, 6, 8, Eul 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) First assertion: The Plaintiff applied for recognition of eligibility for unemployment benefits.

On March 10, 2011, the Plaintiff filed a claim with the Defendant to verify the insured status of employment insurance, and on March 15, 2011, the Defendant rendered a provisional disposition against the Plaintiff on the failure to report the acquisition or loss of insured status of employment insurance. On March 29, 2011, the Plaintiff stated that the Plaintiff would pay unemployment benefits to the examiner upon filing a request for review as to the foregoing non-provisional disposition. This can be deemed as having filed an application for recognition of the eligibility for unemployment benefits.

(2) The second argument: The instant disposition is inconsistent with the preceding action, thus contrary to the principles of trust protection, against the principles of responsible administration.

(A) On February 28, 2011, the Plaintiff’s termination of the Seoul Special Metropolitan City Local Contract Public Officials’ Employment Contract, and on March 201, 201, intended to apply for recognition of eligibility for unemployment benefits to the Defendant for the earlyman. However, the employee in charge of the Defendant’s position provided that the Plaintiff may apply for recognition of eligibility for unemployment benefits through a trial as the insured status was revoked ex officio, and that the Plaintiff would receive unemployment benefits if he/she participated in a trial.

(B) The Plaintiff could only file a lawsuit seeking confirmation of invalidity of the ex officio cancellation of insured status based on the guidance of the employee in charge of the Defendant’s employment insurance, but could not make an application for recognition of eligibility for unemployment benefits itself. Ultimately, the Defendant’s judgment seeking confirmation of invalidity of the ex officio cancellation of insured status based on the Plaintiff’s filing of the lawsuit is final and conclusive, and thus, the instant disposition rejecting the Plaintiff’s application for payment of job-seeking benefits is inconsistent

(C) In addition, on March 201, 201, the Defendant had had had had a proper administrative guidance to apply for recognition of eligibility for unemployment benefits to the Plaintiff, but had been engaged in both unlawful administrative guidance, which is the premise of applying for recognition of eligibility for unemployment benefits, as the acquisition and loss of eligibility for unemployment benefits, was against the principle of responsible administration.

(3) The third argument is contrary to the principle of equality.

In addition, the Plaintiff filed a lawsuit seeking confirmation of invalidity of the ex officio cancellation of insured status and received unemployment benefits from the Defendant regardless of the application for recognition of eligibility for unemployment benefits, so the instant disposition violates the principle of equality.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Relevant legal principles

Article 13 of the Act provides that the date of acquisition of insured status (Article 14) and the date of loss (Article 14), conditions for receiving job-seeking benefits (Article 40(1)), but Article 42 of the Act provides that "any person who intends to obtain job-seeking benefits shall, without delay after departure from employment, attend the Employment Security Office and report unemployment (Article 1)." Article 42 of the Act provides that "the report of unemployment under Article 43(1) shall include an application for job-seeking and an application for recognition of eligibility for benefits under Article 43 (2)." Article 43(1) provides that "any person who intends to obtain job-seeking benefits shall obtain recognition from the head of the Employment Security Office that he/she satisfies the requirements for receiving job-seeking benefits under Article 40(1)1 through 3, 5 and 6, and Article 44(1) provides that "job-seeking benefits shall be paid on the date when the head of the Employment Security Office obtains recognition of unemployment from among the date of unemployment."

In full view of the above provisions, the right to claim job-seeking benefits is not naturally created solely on the ground that the person who acquired the insured status satisfies the eligibility requirements for job-seeking benefits as prescribed in Article 40(1) of the Act, but is only reported of unemployment including an application for a job-seeking and an application for recognition of eligibility, and it may only arise when the head of an employment security office recognized the eligibility for benefits and unemployment. Therefore, a person who did not obtain the eligibility for benefits upon application for

(2) Determination on the first argument

According to Gap evidence Nos. 5 and Eul evidence Nos. 2 and 4, the plaintiff demanded the defendant to confirm the insured status on March 10, 2011, and the defendant issued a disposition to confirm whether the insured status is acquired or lost or not, on March 15, 2011, to the plaintiff on March 15, 2011, and the plaintiff filed a request for an examination against an examiner on March 29, 201 to review the above confirmation and request for an examination to change the measures to acquire the insured status from March 1, 2009 to February 28, 2011.

However, pursuant to Article 87(1) of the Act, the Plaintiff’s written request for the examination as above is submitted by the Plaintiff to an examiner for an examination as to the confirmation and disposition on the acquisition or loss of insured status under Article 17 of the Act, and it cannot be deemed an application for recognition of eligibility for benefits under Article 43

Therefore, the plaintiff's first argument is without merit.

(3) Judgment on the second argument

(A) The proviso to Article 13 of the Act provides that if a person who was an employee excluded from the application of Article 10 becomes subject to this Act, he/she shall be deemed to have acquired the insured status on the date when he/she becomes subject to this Act (Article 10 subparagraph 1). The proviso to Article 10 subparagraph 3 of the Act provides that a contract-based public official may purchase the employment insurance at his/her will, and Article 3-2 (3) of the Enforcement Decree of the Act provides that a contract-based public official shall be deemed to have acquired the insured status on the day following the date when he

Therefore, if a contracting officer applies for employment insurance, he/she shall obtain the insured status as a matter of course on the following day without confirming the insured status, and even if the defendant voluntarily cancelled the insured status, the plaintiff can apply for recognition of eligibility for benefits under Article 43 of the Act to the defendant separate from the appeal procedure, and if the defendant refuses to apply for recognition of eligibility for benefits of the plaintiff, he/she may proceed with the appeal procedure against the rejection disposition.

(B) In light of the above, there is no evidence to prove that the employee in charge of the defendant's employment insurance provided that the insured status should be recovered because the employee in charge of the defendant's employment insurance was revoked ex officio, but that he could apply for recognition of eligibility for unemployment benefits, or that the employee in charge of the defendant's employment insurance informed the plaintiff that he would receive unemployment benefits even if there was no application for recognition of eligibility for unemployment benefits, if he won the plaintiff through a trial on the revocation of eligibility for unemployment benefits. Therefore, the instant disposition is inconsistent with the preceding act and cannot be deemed as contrary to the principle of trust protection. In addition, even if the employee in charge of the defendant did not instruct the plaintiff to apply for recognition of eligibility for unemployment benefits, the instant disposition cannot

Therefore, the plaintiff's second argument is without merit.

(4) Judgment on the third argument

According to Gap evidence No. 2 and the result of this court's fact-finding on the Seoul Southern District Office of Employment and Labor, the plaintiff filed a lawsuit seeking confirmation of invalidity of the ex officio cancellation of the insured status, and the plaintiff and 10 others who won the lawsuit can only recognize the fact of receiving job-seeking benefits after reporting unemployment to the Employment Security Office after departure from employment and obtaining recognition of the eligibility for unemployment benefits. Thus, the third third argument of the plaintiff on the premise that the above persons did not receive unemployment benefits is not reasonable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Chief Judge Park Tae-tae

decoration of Judge Merit;

Judge Cham Name

Attached Form

A person shall be appointed.

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