(영문) 서울행정법원 2018.8.13.선고 2018구단11435 판결

On June 28, 2017, the Defendant’s disposition imposing restrictions on the payment of unemployment benefits against the Plaintiff, the order to return KRW 3,294,410, and the order to additionally collect KRW 1,124,920 shall be revoked.

Reasons

1. Details of the disposition;

A. On March 31, 2015, the Plaintiff left his/her job at Samchi Electronic Co., Ltd., and filed an application for recognition of eligibility for job-seeking benefits with the Defendant pursuant to Article 43 of the Employment Insurance Act on April 6, 2015, and received recognition of eligibility for benefits on

B. After that, the plaintiff submitted a report on re-employment efforts under Article 44(2) of the Employment Insurance Act to the defendant under the name of the plaintiff (hereinafter referred to as the "report of this case" according to the above sequence, and the plaintiff received job-seeking benefits equivalent to the total amount of KRW 3,615,810 upon obtaining recognition of unemployment from the defendant (one day of the following table is all of the year 2015).

A person shall be appointed.

C. However, at the time of the instant report, the Plaintiff was staying in the UK, and upon the Plaintiff’s request, the Plaintiff’s birth in the Republic of Korea was in the name of the Plaintiff via the Internet.

D. The Defendant, upon the notice of the Board of Audit and Inspection, ascertaining the circumstances as above (c) above at the latest following the report, and the recipient of the unemployment recognition through Internet under Article 89(6) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor No. 176, Dec. 30, 2016; hereinafter the same shall apply) which was in force at the time of the report is in violation of the provision that "any person who intends to obtain unemployment recognition shall faithfully report whether activities and income have occurred directly on the Internet using an authorized certificate on the date designated by the head of the employment security office having jurisdiction over the place of application." Therefore, the Plaintiff’s report on June 28, 2017; ① a disposition restricting the payment of unemployment benefits pursuant to the main sentence of Article 61(1) of the Employment Insurance Act; ② a disposition restricting the amount of job-seeking benefits received by the Plaintiff pursuant to the former part of Article 62(1) of the Employment Insurance Act; ③ an additional collection of the amount of KRW 294, 1209,204.20.

E. On September 22, 2017, the Plaintiff filed a petition for review with an employment insurance examiner on September 2, 2017, but the petition for review was dismissed on November 3, 2017. On February 2, 2018, the Employment Insurance Review Committee filed a petition for review to dismiss the petition for review on March 7, 2018.

【Ground of recognition】 The fact that there is no dispute, Gap's 1, 2, 3, 4, Eul's 1 to 9, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The Plaintiff’s report of this case on the Internet through his birth during the period of overseas stay, and the job-seeking benefits received cannot be deemed as a case where unemployment benefits were received on the basis of “any false or other unlawful means” under Article 61(1) of the Employment Insurance Act.

2) Violation of the principle of proportionality

Even if the Plaintiff received unemployment benefits by "the fraudulent or other unlawful means" under Article 61 (1) of the Employment Insurance Act, considering the fact that the Defendant did not inform the Plaintiff of the fact that it was prohibited from reporting reemployment through the Internet to a third party, that the Defendant did not grant the Plaintiff an opportunity to voluntarily report the fact that the Plaintiff received unemployment benefits by unlawful means, and that the Plaintiff had faithfully endeavored to be re-employed at the time of the instant report, the instant disposition should be deemed to be in violation of the principle of proportionality, as it is excessively harsh to the Plaintiff compared to the public interest that the Plaintiff intended to achieve.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether there is a ground for disposition

A) Whether an eligible recipient who seeks to report reemployment through the Internet must complete reporting of job-seeking benefits by directly using an authorized certificate

According to Article 40(1)2 and 44(2) and (3) of the Employment Insurance Act, in order to receive unemployment benefits (job-seeking benefits), the insured shall actively endeavor to re-employment in the absence of employment status despite his/her intent and ability to do so (hereinafter referred to as “the date of unemployment recognition”) and report his/her efforts for reemployment to the Employment Security Office (hereinafter referred to as “the date of unemployment recognition”) before being present at the Employment Security Office. In principle, Article 44(2) of the Employment Insurance Act provides that an eligible recipient who wishes to obtain unemployment recognition can, in principle, report his/her efforts to re-employment at the Employment Security Office within the scope of one week from the date of unemployment declaration and four weeks from the date of employment declaration, by reporting his/her efforts for reemployment. Article 44(2)3 of the former Enforcement Decree of the Employment Insurance Act provides that an eligible recipient may report his/her failure to meet the standards prescribed by Ordinance of the Ministry of Employment and Labor. Article 46(2)3 of the Employment Insurance Act, which provides that “the following methods for self-employment activities” can be reported by the head of an eligible recipient.

In full view of the language, structure, form, and content of the above relevant statutes, it is clear that the beneficiary is entitled to receive the report of reemployment by attending the Employment Security Office in principle. As such, the purport of the beneficiary’s direct attendance is to prevent unjust payment of job-seeking benefits in lump sum by directly confirming the content, re-employment, the intent, and capabilities of the job-seeking efforts, and thereby, to expand employment in the Republic of Korea through re-employment in the Republic of Korea. Therefore, it is reasonable to view that the beneficiary who intends to report reemployment through the Internet ought to complete the report of job-seeking benefits by directly using the authorized certificate, similar to that of the beneficiary who directly attended the Employment Security Office.

B) Whether the plaintiff's illegal receipt was made

During the period of his stay in the UK, the Plaintiff also recognized the fact that he had the Dongs in Korea reported the instant case under the name of the Plaintiff. Accordingly, the Plaintiff’s payment of unemployment benefits from the Defendant under the instant report constitutes a case where the Plaintiff received unemployment benefits by “any false or other unlawful means” under Article 61(1) of the Employment Insurance Act. Therefore, the Plaintiff’s assertion that there exists no grounds for the instant disposition is groundless.

2) Whether the principle of proportionality is violated

A) Relevant legal principles

The determination of whether a punitive 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, which is the reason for the disposition, and the public interest to be achieved by the act of disposition, and all the relevant circumstances. In addition, even if the criteria for punitive administrative disposition are prescribed in the form of Ministerial Ordinance, it is nothing more than that prescribed by the administrative agency’s internal rules for handling affairs, and it is not effective externally, and whether such disposition is legitimate or not should be determined in accordance with the relevant Acts and subordinate statutes and regulations, not only the above criteria for disposition but also in conformity with the above criteria for disposition. Therefore, it cannot be said that the above disposition is legitimate merely because it does not conform with the Constitution or laws, or that the punitive administrative disposition in accordance with the above criteria for disposition is unreasonable in light of the content and purport of the relevant Acts and subordinate statutes (see Supreme Court Decision 207Du6946, Sept. 20, 2007).

B) Determination

In light of the legal principles as seen earlier, the Plaintiff’s assertion that the instant disposition was excessively harsh to the Plaintiff compared to the public interest intended to achieve by itself cannot be accepted in light of the following circumstances that can be acknowledged by comprehensively considering the respective descriptions of evidence Nos. 1, 7, and 11. The instant disposition is lawful.

① It is difficult to deem that the criteria for disposition prescribed in Articles 104 and 105 of the Enforcement Rule of the Employment Insurance Act do not in itself conform with the Constitution or Acts or subordinate statutes, or that there exist reasonable grounds to recognize the instant disposition in light of the substance of the offense and the substance and purport of the relevant statutes.

② The content of the instant disposition is more favorable to the Plaintiff than that set forth in Articles 104 and 105 of the Enforcement Rule of the Employment Insurance Act. In other words, Article 104 Subparag. 1 of the Enforcement Rule of the Employment Insurance Act provides that a person who received job-seeking benefits by fraud or other improper means shall be ordered to return all the job-seeking benefits paid to the Plaintiff. The Defendant only ordered the Plaintiff to return the instant report and the job-seeking benefits (3,294,410 won) paid pursuant to Article 4 of the Employment Insurance Act. The Defendant did not order the Plaintiff to return KRW 321,40 of the job-seeking benefits paid pursuant to the first report. Article 105 of the Enforcement Rule of the Employment Insurance Act also provides that all the job-seeking benefits paid by fraud or other improper means shall be additionally collected. The Defendant additionally collected only KRW 1,124,920 of the job-seeking benefits paid by the Plaintiff

③ In general, the Defendant provided education to the applicant for job-seeking benefits, when making a report of re-employment via the Internet before recognizing eligibility for benefits, the Defendant provided education to the Plaintiff that he/she should report by using an authorized certificate, as in the case of having attended the employment insurance center directly, and such education appears to have been provided to the Plaintiff. Even if the Plaintiff was designated as a recipient of Internet unemployment benefits from the Defendant, the term “I have to prepare and transmit an application for unemployment recognition with his/her authorized certificate from the employment insurance website.”

④ The Plaintiff did not voluntarily notify the Defendant of the fact that her birth was the instant report (it cannot be viewed that there was a legal obligation for the Defendant to individually urge the Plaintiff to file a voluntary report on illegal receipt). The Defendant became aware of the said fact only upon the notice of the Board of Audit and Inspection.

(5) At the time of the instant disposition, the Defendant had the Defendant pay in installments the amount to be paid to the Defendant three times in consideration of the Plaintiff’s circumstances.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.