(영문) 인천지방법원 2012.4.19. 선고 2011구합4583 판결

The Defendant’s revocation of the restriction on the payment of unemployment benefits, the order to return, and the disposition of additional collection against the Plaintiff on July 16, 2010.

Reasons

1. Details of the disposition;

A. From April 5, 2009 to January 13, 2010, the Plaintiff filed an application for recognition of eligibility for employment insurance with the Defendant on January 29, 2010, alleging that he/she had retired from employment on January 13, 2010, while serving in Nonparty Incorporated Foundation B (hereinafter “Nonindicted Foundation”). Upon obtaining recognition of eligibility for employment insurance from the Defendant, the Plaintiff received KRW 4640,00 in total on five occasions from February 5, 2010 to May 31, 2010 (= KRW 1160,000).

B. On January 13, 2010, the Defendant confirmed that the Plaintiff continued to work for the non-party foundation even after receiving the Plaintiff’s report on illegal receipt of demand and supply, and on July 16, 2010, issued the instant disposition ordering the Plaintiff to pay KRW 4.64 million, additionally collected amount, KRW 4.64 million, additionally collected amount, and KRW 9.28 million, on the ground that the Plaintiff was falsely recognized as eligible for benefits.

C. On December 22, 2010, the Plaintiff appealed and filed a request for examination with an employment insurance examiner on December 22, 201, but was dismissed on January 21, 201, and again filed a request for reexamination with the Employment Insurance Review Committee on April 27, 201, but was dismissed on June 16, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff retired from office after being solicited to retire from office due to the suspension of business of the Nonparty Foundation, and thereafter, the Plaintiff was driving several times to request the employment of the president of the Nonparty Foundation, and was accompanied by the Nonparty Foundation, and did not work at the Nonparty Foundation or receive monetary compensation after retirement. Since the instant disposition was due to misunderstanding of facts, it was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The issues of the case

Job-seeking benefits refer to the purpose of stabilizing the livelihood of workers and promoting their job-seeking activities by providing necessary benefits in the event of unemployment (Article 1 of the Employment Insurance Act), and to the requirement that the insured is "the separation from employment" (Article 40 (1) of the Employment Insurance Act), and "the termination of employment relationship between the insured and the business owner" (Article 2 subparagraph 2 of the same Act). In this case, the issue is whether the employment relationship between the plaintiff and the non-party foundation is terminated at the time when the plaintiff applied for recognition of eligibility for employment insurance benefits.

(2) Facts of recognition

The following facts may be acknowledged either without dispute between the parties or by adding the whole purport of the pleadings to the evidence, Gap evidence Nos. 10, 11, 12, Eul evidence Nos. 3 through 15, and witness D's testimony, and there is no counter-proof.

Since the establishment of January 24, 2008, the non-party foundation was selected as a subsidized business operator of the Small and Medium Business Administration and operated the business with subsidies from the Small Business Administration. On December 4, 2009, the non-party foundation received an order from the Administrator of the Small and Medium Business Administration to return KRW 41 million out of the government subsidies granted in 2008 in relation to the information system building project, which is a national subsidy, and received notification of the termination of the subsidy business on December 31, 2009, and the security deposits for the office of the foundation were seized on January 5, 2010.

B. On January 2010, the non-party foundation recommended the employees belonging to the foundation to apply for resignation and unpaid leave of absence on the grounds of managerial difficulties of the police officer. Among the total 13 employees, seven employees including the plaintiff were responded to the recommendation, but the remaining six employees were dismissed due to their failure to comply with the recommendation.

C. From the end of the argument of this case to the end of the argument of this case, the administrative litigation that disputes the disposition of the Small and Medium Business Administration against the non-party foundation is pending between the non-party foundation and the president of the National Labor Relations Commission and the non-party foundation.

(D) The Plaintiff recognized the fact that he had worked in the non-party foundation by February 8, 2010 (However, the Plaintiff asserts that the Plaintiff was working in the non-party foundation to assist the reorganization of the foundation’s affairs, and did not work every day); on March 24, 2010; on April 16, 2010; on April 28, 2010; on April 29, 2010; on May 14, 2010; on May 19, 2010, the Plaintiff received postal items delivered to the non-party foundation and signed the delivery certificate as the recipient; on April 8, 2010, the non-party foundation made the invitation of the non-party foundation and the non-party foundation, a company, to attend the meeting for attracting investment in the U.S. market on April 24, 2010; and on April 19, 2010.

E. On the other hand, the above event was held by the F Director of the Non-Party Foundation to take full charge of the preparation, but on the day of the event, the head of the G team of the Non-Party Foundation was present at the meeting. F and G are those who submitted a resignation on January 2010 with the Plaintiff.

5 H was an employee dismissed from the non-party foundation due to the failure to submit a resignation statement around January 201, and the plaintiff et al. witness and informed the Employment and Labor Office of the fact that the plaintiff et al. continues to work for the non-party foundation in the process of collecting the litigation data related to the relief of unfair dismissal. As a result of the investigation, G was subject to a disposition such as a return order of KRW 9.6 million from the head of the Dong site of Seoul Regional Employment and Labor Office and the head of the Daegu Regional Employment and Labor Office on the ground that the plaintiff et al. received unemployment benefits by making a false report while serving for the non-party foundation, and the two persons did not appeal the above disposition

(G) The Plaintiff served as C’s driver from Company I operated by C, and served as C’s driver upon C’s recommendation on April 1, 2009. From June 1, 2010 to March 1, 2011, the Plaintiff served as C’s driver on the following day.

H. The Plaintiff did not receive benefits from the bank account that was previously paid by the non-party foundation after the Plaintiff submitted a resignation letter to the non-party foundation.

(3) Determination

According to the above facts of recognition, even after the non-party foundation received the order of return of government subsidies from the Small and Medium Business Administration and the notice of termination of the assistant business, it does not seem to be a scambling of the procedures following the discontinuance of the business, such as resolution of dissolution or execution of liquidation work, and rather, it can be recognized that the external event was held on April 2010 and the administrative appeal and dismissal lawsuit against the disposition of the Small and Medium Business Administration was initiated. Thus, it is difficult to view that the non

In full view of such circumstances and the relationship between the Plaintiff and C, and the fact that the Plaintiff received several mail from the office of the non-party foundation after the submission of the resignation, and that the Plaintiff was named in the outside events of the non-party foundation, it is reasonable to deem that the Plaintiff was actually employed by the non-party foundation with F and G until May 2010, even if the Plaintiff did not receive normal benefits from the non-party foundation.

Therefore, since the employment relationship between the Plaintiff and the non-party foundation was not terminated at the time of applying for recognition of eligibility for employment insurance for the Plaintiff, the Plaintiff’s receipt of job-seeking benefits pursuant to Article 40(1) of the Employment Insurance Act constitutes a case of receiving job-seeking benefits by fraud or other improper means under Article 62(1) of the same Act (amended by Act No. 1039, Jun. 4, 2010). The Plaintiff’s assertion

3. Conclusion

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