(영문) 부산고등법원 2016.7.15. 선고 2014누22793 판결

1. The part of the judgment of the court of first instance against the Plaintiff, which orders the cancellation below, shall be revoked. The defendant shall revoke the disposition to restrict the payment of various subsidies and incentives for employment security activities for one year (from April 4, 2013 to April 3, 2014) against the Plaintiff on April 4, 2013.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

Order 1 and the Defendant’s disposition on April 4, 2013: (a) disposition on site pay for extension of employment of elderly people; (b) return of KRW 68,609,830 to the Plaintiff; and (c) additional collection of KRW 137,219,660 to the Plaintiff is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a corporation established on December 21, 2004 for the main purpose of security business, etc.

B. On the ground that the retirement age of the workplace was changed from 60 to 65 years of age, the Plaintiff applied for a subsidy for promotion of employment of the aged to the Defendant, and received a total of KRW 82,284,010 from 3rd quarter of 2008 to 3rd quarter of 2012 as indicated below.

A person shall be appointed.

C. On January 17, 2013, the Plaintiff filed an application with the Defendant for the payment of KRW 4.2 million of the subsidies for promotion of employment of the elderly in the quarter of April, 2012. The Defendant, following an investigation with the Plaintiff, issued an order to the Plaintiff for the payment of KRW 4.2 million. The Defendant: (a) on the ground that “the Plaintiff constitutes contractual workers whose retirement age has been extended; (b) the Plaintiff’s employees who reported (hereinafter “the instant workers”) constitute those who were not subject to the rules of employment; and (c) as if the Plaintiff extended retirement age, submitted the rules of employment; and (d) denied the payment of the subsidies by submitting the rules of employment as if they were extended; and (e) on April 4, 2013, the Plaintiff paid the site for the subsidies for promotion of employment of the elderly in the quarter of April 20, 201 and the total amount of the subsidies already paid KRW 68,609,830 (Article 107(1) of the Employment Insurance Act) for up to April 201,2014).

D. The Plaintiff appealed and filed an administrative appeal with the Central Administrative Appeals Commission on June 12, 2013, but was dismissed on February 11, 2014.

E. The Plaintiff filed a petition with the competent court for adjudication on the unconstitutionality of Article 35(1) of the former Employment Insurance Act (amended by Act No. 10399, Jun. 4, 2010; Act No. 13041, Jan. 20, 2015); and this Court accepted the above petition for adjudication on the unconstitutionality of statutes on July 9, 2015.

Article 35 (1) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008; Act No. 1039, Jun. 4, 2010); Article 35 (1) of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010); Article 35 (1) of the former Employment Insurance Act (amended by Act No. 13041, Jan. 20, 2015); “Restrictions on support or orders, as prescribed by Presidential Decree” is in violation of the principle of prohibition of comprehensive delegation under Article 75 of the Constitution; Article 9315 of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008); Article 35 (1) of the former Employment Insurance Act (amended by Act No. 10301, Jun. 13, 2010; hereinafter referred to as “former Act 130305”).

The portion of "it is not in violation of the Constitution" is decided that "it shall not violate the Constitution."

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, 4, Eul evidence 1 and 2 (including various numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

1) The instant workers have formally prepared an employment contract each year, but all of them are continuously employed for more than four to six years, and they are in fact with no fixed period of time. Even if the instant workers are fixed-term workers not subject to the statutory retirement age, they have dealt with an employment contract under the premise that the Plaintiff’s provision on retirement age under the rules of employment applies to the instant workers, and thus, the Plaintiff cannot be deemed to have received unfair payment for receiving subsidies for extension of employment of the instant elderly workers.

2) Of the instant disposition, a restriction on support for one year is based on the former Enforcement Decree of the Employment Insurance Act that violates the principle of prohibition of comprehensive delegation, and thus is null and void. The return of subsidies and additional collection are null and void as the amount of employment subsidies to be returned by the Plaintiff is unclear due to the invalidity of the restriction on support for one year.

3) The Defendant paid subsidies to the Plaintiff 38 times over several years, and the Plaintiff continued to apply for subsidies after trusting the Defendant’s payment of subsidies. The Defendant’s disposal of return and additional collection of the subsidies of this case is unlawful against the principle of trust protection. The Defendant’s disposal of the subsidies of this case is unlawful. The Defendant’s disposal of the subsidies of this case without properly examining the Plaintiff’s application for subsidies related to the employee C, F, and J is an infringement of the Plaintiff’s property right, and each disposition of this case is unlawful. The portion of the subsidies paid to the employees other than the above employees is not illegal payment to the Plaintiff. The Defendant’s disposal

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

1) On September 27, 2007, the Plaintiff enacted the rules of employment. The main contents are as follows.

A person employed as an employee under Article 11 (Labor Contract) shall be deemed to have consented to the working conditions under these Rules, and the labor contract shall be concluded in writing by signing and sealing the employment contract.The term of the employment contract of the employee under Article 12 (Period of Employment Contract) may be a new or renewed employment contract by agreement between the company and the employee.The retirement employee under Article 49 (Retirement Contract) shall retire in the following cases:

2) On July 25, 2008, the Plaintiff changed the retirement age under Article 50 of the Rules of Employment to 65 years, and reported the amendment of the Rules of Employment to the Defendant on July 28, 2008.

3) Most of the Plaintiff’s workers, including the instant workers, have prepared a one-year employment contract between the Plaintiff and the Plaintiff. During the Defendant’s investigation into the Plaintiff, the Defendant stated that among the instant workers, “A was newly prepared a one-year contract with the Plaintiff, “C” was settled every year, and the retirement pay was also settled every year, and that he was retired from the company at the end of the contract period.” ② The F was the Plaintiff’s one-year contract worker, and the Plaintiff was not guaranteed employment up to the retirement age as the Plaintiff’s one-year contract worker, and the Plaintiff’s resignation was actually withdrawn from the Plaintiff’s resignation.

4) From among the instant workers, C (N) retired from the Plaintiff on July 31, 201, before reaching the age of 65 under the amended rules of employment, on the ground that “the termination of the contract,” and “the termination of the contract,” which was earlier than the retirement age of 65 years under the amended rules of employment, retired from the Plaintiff on September 30, 2012, before the F (O) reached the age of 65, which was earlier than the retirement age of 65 years under the amended rules of employment.” The J (P) retired from the Plaintiff on the ground that “the termination of the contract, which was earlier than the retirement age of 65 years under the amended rules of employment.”

5) Meanwhile, according to the Defendant’s report on the loss of each insured worker and the Defendant’s certificate of severance from employment insurance, etc., the Plaintiff’s worker (not the instant worker), and Qu (R) retired from the Plaintiff on the ground that the Plaintiff reached the retirement age on June 1, 2007, before the Plaintiff enacted the rules of employment at 60 years old or changed the retirement age to 65 years old. At that time, Q’s age was 65 years old, and Q (T) retired from the Plaintiff on the ground that it reached the retirement age on June 30, 2007, before the Plaintiff’s rules of employment were enacted. At that time, S (T) retired from the Plaintiff on the ground that it reached the retirement age on June 30, 207, before the enactment

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 4, Eul evidence Nos. 3, 4, and 5, the purport of the whole pleadings

D. Determination

1) The portion concerning restrictions on the payment of various subsidies and incentives for employment security activities for one year (from April 4, 2013 to April 3, 2014)

Article 35 (1) of the former Employment Insurance Act (amended by Act No. 9315 of Dec. 31, 2008, and amended by Act No. 1039 of Jun. 4, 2010), which is the basis of the above disposition, limits the support or limits the support as prescribed by Presidential Decree, and Article 35 (1) of the former Employment Insurance Act (amended by Act No. 13041 of Jan. 20, 2015) of the former Employment Insurance Act (amended by Act No. 1039 of Jun. 4, 2010) and Article 35 (1) of the former Employment Insurance Act (amended by Act No. 13041 of Jan. 20, 2015), which is the basis of the above disposition, is in violation of the principle of prohibition of comprehensive delegation of Article 75 of the Constitution, and thus, the disposition of this case is unlawful.

2) The part concerning the disposition of site pay for extension of employment of the elderly workers, the return of 68,609,830 won for extension of employment, and additional collection of 137,219,660 won

A) In full view of the facts acknowledged earlier as to Chapter 1 and the following circumstances revealed by comprehensively taking account of the evidence revealed earlier, it cannot be deemed that the Plaintiff had extended the existing retirement age at the time of applying for the extension subsidy for employment of senior citizens for the fourth period of April 2012, but did not have extended the age of 65. The Plaintiff’s receipt of an application for extension subsidy for employment of senior citizens on the ground that the retirement age was 60 years old but was extended by 65 years old constitutes “a person who received an application for extension subsidy for employment of senior citizens” under Article 35(1) of the Employment Insurance Act, etc.

① The instant workers, including the instant workers, are at least 60 years of age, and most of the Plaintiff’s workers, including the instant workers, were engaged in the service industry, such as parking management, housing management, facility security, and cleaning services. Of the instant workers, C and F were employed as one-year contract workers, not full-time workers, but as one-time workers in the Defendant’s investigation process with respect to the Plaintiff. They stated that C and F were not aware of the retirement age regulations or they did not know of their retirement age regulations. According to the written ruling of the Central Administrative Appeals Commission on the instant disposition, it stated that E and E, one of the instant workers, were the same purport during the instant investigation process.

③ After the establishment of the Plaintiff, the Plaintiff enacted the rules of employment with the retirement age of 60 years, and revised the retirement age to 65 years thereafter, and reported this to the Defendant at the same time, and applied for subsidies for extension of employment of the aged at the same time. However, among the Plaintiff’s employees, there was a retired employee (this court submitted data about Q and S among them) on the ground of “the retirement age already worked until it was established by the age of 65” on the ground of “the retirement age of 60 years old.”

④ Under Article 23 of the Employment Insurance Act and Article 25 of the Enforcement Decree of the Employment Insurance Act, the subsidies for extension of employment of the aged are those granted to employers who newly employ the aged or take measures necessary for their employment security, i.e., abolition of the retirement age or extend the existing retirement age for at least one year, to promote the employment of the aged, and are paid for the promotion of employment and employment stability of the aged workers.

However, in full view of the contents of the employment contract of the above workers belonging to the plaintiff, the form of employment, the statement of some workers such as C and F, the time and age of retired workers before and after the enactment and amendment of the employment rules, and the specific reason for retirement reported to the defendant, etc., the plaintiff shall enact and amend the employment rules. Even after applying for extension of employment for the defendant, the plaintiff shall be treated as a fixed-term worker, regardless of the retirement age stipulated in the employment rules, for some workers who prepared the employment contract for one year among the employees under his/her control, regardless of the retirement age stipulated in the employment rules, and shall terminate the employment relationship on the ground of the expiration of the period before reaching the retirement age. Thus, it cannot be deemed that measures necessary for the employment security of the elderly workers, such as having the substance of the extension of retirement age after the revision of the employment rules, and even if so, applying for extension of employment for the elderly workers by submitting the amended employment rules,

2) As to Chapter 2, Article 35 of the Employment Insurance Act, Article 56 of the Enforcement Decree of the same Act, Article 78 of the Enforcement Rule of the same Act, and Article 56 of the same Act provide that the amount ordered to be returned and to be additionally collected in the instant disposition shall be subject to the criteria for the relevant statutes, such as the provision of the Employment Insurance Act, and Article 78 of the Enforcement Rule of the same Act provides that the amount ordered to be returned shall be “a subsidy already received in a false or other unlawful manner with respect to the amount ordered to be returned” and Article 78 of the Enforcement Rule of the same Act provides that the amount ordered to be additionally collected shall be double the amount received in the

3) As to Chapter 3, the Defendant’s payment of subsidies to the Plaintiff since 2008 is based on the Plaintiff’s application even though the Plaintiff was not a business owner meeting the requirements for the payment of subsidies for employment of the aged (see, e.g., Supreme Court Decision 2001Du1512, Nov. 8, 2002). Therefore, the Plaintiff’s assertion that each of the instant dispositions violates the principle of trust protection, or that the Plaintiff’s property right is unlawful by infringing on the Plaintiff’s property right is without merit. Furthermore, each of the instant dispositions was made on the ground that the Plaintiff was paid subsidies since it did not meet the requirements for the payment of subsidies for extension of employment of the aged workers, such as the Plaintiff’s extension of retirement age by amending the rules of employment, on the ground that it did not meet the requirements for the payment of subsidies for extension of employment of the aged workers, and thus, the Plaintiff’s claim on

3. Conclusion

If so, for one year (from April 4, 2013 to April 3, 2014) of the Plaintiff’s claim, various subsidies for employment security activities and the part concerning restriction on payment of incentives are cited as reasonable, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is unfair in some different conclusions. Thus, for one year (from April 4, 2013 to April 3, 2014) all kinds of subsidies for employment security activities, restrictions on payment of incentives, and the part that ruled against the Plaintiff corresponding to the part that orders the cancellation of the above dispositions among the judgment of the court of first instance, the part that ruled against the Plaintiff as corresponding to the part that orders the cancellation of the above dispositions shall be revoked, and