(영문) 인천지방법원 2017.10.17.선고 2017구단98 판결

On June 3, 2016, the Defendant revoked the restriction on the payment of unemployment benefits, the order to return, and the disposition of additional collection against the Plaintiff.

Reasons

1. Details of the disposition;

A. On September 7, 2015, the Plaintiff applied for recognition of eligibility for employment insurance benefits to the Defendant on the ground that he/she retired at C Child Care Center on August 30, 2015, recognized eligibility for benefits of KRW 120 days, KRW 30,132 of the fixed benefit payment days, and KRW 1,717,510 was paid on three occasions for 57 days from September 14, 2015 to November 9, 2015.

B. Upon applying for recognition of eligibility for employment insurance as above, the Plaintiff reported the final place of business as "Caton House", "the date of departure from employment", and "unemployment" in the column for verification of the current status of employment. On September 21, 2015, upon applying for recognition of unemployment, the Plaintiff reported the application for recognition of unemployment (the period subject to recognition of unemployment: the period from September 14, 2015 to September 21, 2015) as "not in the column for verification of work details". The Defendant additionally collected the amount of unemployment benefits from January 19, 2015 to September 19, 2015 on the ground that the Plaintiff was working at the DM, from January 2015 to September 19, 2015, on the ground that the Plaintiff received job-seeking benefits, which was denied even if it did not meet the eligibility for the payment of old job-seeking benefits (the instant order to return the amount of unemployment benefits to Plaintiff 17, 157, and 17).

D. The Plaintiff dissatisfied with the instant disposition and filed a request for review with an employment insurance examiner on August 16, 2016. However, the Plaintiff again filed a request for reexamination with the Employment Insurance Review Committee, but was dismissed on August 10, 2016.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 15, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

As of September 5, 2015, the Plaintiff was working at the instant establishment until September 5, 2015, and was in the state of failing to do so at the time of applying for recognition of eligibility for employment insurance on September 7, 2015. The head of the instant establishment requested the Ministry of Employment and Labor to provide an opportunity for doing so, making a call at the Ministry of Employment and Labor. On September 14, 2015, the unemployment recognition date, from September 19, 2015, he/she was notified that he/she would be punished by her from her working time to September 19, 2015. Taking into account the aforementioned circumstances, the Plaintiff intentionally committed an act of violation, not intentionally committed the act of violation. Considering that the Plaintiff’s order to return her working time from September 14, 2015 to September 19, 2015, the Plaintiff lost his/her discretionary authority to recover from the tunnel and additionally collect his/her ability to do so.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) Article 40(1)2 of the Employment Insurance Act provides that “If a person has provided labor during the period subject to verification of unemployment, he/she shall report to the head of an employment security office, stating the fact in the first application for verification of unemployment, after the date of provision of labor.” In addition, Article 62(1) of the Act provides that “the head of an employment security office may order a person who has received job-seeking benefits by fraud or other improper means to return all or part of the total amount of job-seeking benefits received, and in addition, the head of an employment security office may order the person who has received job-seeking benefits by fraud or other improper means to collect an amount equivalent to or less than the amount of job-seeking benefits received in accordance with the standards prescribed by Ordinance of the Ministry of Employment and Labor, and Articles 104 and 105 of the Enforcement Rule provide that the person who has received job-seeking benefits by fraud or other improper means under Article 62(1) of the Act shall be ordered to fully refund the amount of job-seeking benefits and to additionally collect the amount of job-seeking benefits.

The determination of whether such a disciplinary administrative disposition deviates from or abused the scope of discretion under the social norms ought to be made by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation as the ground for the disposition, the public interest purpose to be achieved by the relevant act of disposal, and all the relevant circumstances. In this case, even if the criteria for a disciplinary administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that of the internal rules of the administrative agency, and it is externally binding upon citizens or the court. Thus, the legality of the relevant disposition should be determined not only by the above criteria for disposition but also by the provisions and purport of the relevant Acts and subordinate statutes. Therefore, the relevant disposition cannot be deemed legitimate merely because it conforms to the criteria for disposition, unless there is any reasonable ground to believe that the above criteria do not conform with the Constitution or laws, or that the result of the application of the criteria is significantly unreasonable in light of the content of the act of violation and the purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 696Du7467.

2) In full view of the following circumstances, in light of the relevant statutes and legal principles as seen earlier, the foregoing facts acknowledged, and the overall purport of the arguments in the evidence as seen earlier, it is difficult to deem that the instant disposition constitutes a significantly excessive sanction compared to the Plaintiff’s wrongful act, and thus, constitutes an unlawful act of deviation or abuse of discretionary power. Therefore, the Plaintiff’s assertion is without merit.

According to the statement of the business owner of the instant establishment (Evidence No. 4) and the statement of personal history (Evidence No. 5) of the instant establishment, it is recognized that the Plaintiff continued to work at the instant establishment from January 2015 to September 19, 2015 without any suspension of work. Despite the absence of eligibility for job-seeking benefits, the Plaintiff is recognized as eligible for benefits by hiding it and applying for recognition of eligibility for employment insurance. On September 21, 2015, the Plaintiff is a person who received job-seeking benefits without reporting the fact that he/she had worked at the instant establishment at the time of applying for recognition of unemployment, and is paid job-seeking benefits without reporting the fact that he/she had worked at the instant establishment at the time of applying for recognition of unemployment, and is a person who received job-seeking benefits as defined in Articles 61 and

Although the Plaintiff asserted that the Defendant was informed from the unemployment recognition date that he would have engaged in work within one week from the unemployment recognition date, there is no evidence to acknowledge it, and even if the Defendant’s employee provided false information, it is difficult to deem that the Plaintiff’s performance of duties constitutes a case where there is a justifiable reason that does not lead to the Plaintiff’s performance of duties, in light of the following: (a) the Defendant provided unemployment benefits-related education to an applicant for recognition of eligibility, such as eligibility for benefits, reporting employment, and provided various advices; and (b) the

Article 104 subparag. 1 of the Enforcement Rule of the Employment Insurance Act provides that the scope of return of job-seeking benefits and the amount of additional collection related to “the act of receiving unemployment benefits by fraud or other improper means” shall be ordered to fully return such amount. Article 105(1) and (2) of the Enforcement Rule of the same Act provides that the amount of additional collection shall be 100/100 of the amount of job-seeking benefits already received; however, the amount of additional collection may be reduced only when a daily worker at the time of final severance from employment or a person who faithfully complies with an investigation into misconduct and makes a written promise to immediately pay the amount of unjust enrichment, or when the head of an employment security office reports a wrongful act before investigation into the person who committed the misconduct or his/her workplace, he/she may be exempted from the amount of additional collection. In this case, there is no circumstance that the Plaintiff

○ In light of the legislative purpose of the Employment Insurance Act that provides a worker with necessary benefits and promotes the stabilization of workers’ livelihood and job-seeking activities by providing them with necessary benefits when they are unemployed, the need for public interest that should be executed transparently and appropriately is greater than the disadvantage suffered by the Plaintiff due to the instant disposition.

3. Conclusion

Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.