(영문) 서울행정법원 2017.9.19. 선고 2017구단19647 판결

The Defendant’s decision to restrict the payment of unemployment benefits to the Plaintiff on June 29, 2016, and to order the return of KRW 4,660,390, and to additionally collect KRW 3,937,220 is revoked.

Reasons

1. Details of the disposition;

A. On the ground that the Plaintiff retired from employment at B hotel on July 10, 2015, the Plaintiff received 7,231,680 won of job-seeking benefits for 180 days from August 13, 2015 to February 8, 2016 on the ground that he/she applied for recognition of eligibility for employment insurance to the Defendant.

B. The Defendant rendered a decision to restrict payment of unemployment benefits to the Plaintiff on June 29, 2016 and to additionally collect KRW 3,937,220 (hereinafter collectively referred to as the “instant disposition”), on the ground that the Plaintiff had provided labor to the Maurel D at the time of harmony from November 3, 2015 to February 8, 2016 without reporting the fact that the Plaintiff was paid job-seeking benefits. The Plaintiff filed a request for review with the employment insurance examiner on August 8, 2016, but was dismissed on October 26, 2016, and filed a request for review with the Employment Insurance Review Committee on January 26, 2017, but was dismissed on March 8, 2017.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 2, Eul evidence 1, 2, 4, 5, 8, 10 (including the number of additional evidence attached) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

From November 2, 2015 to March 12, 2016, the Plaintiff: (a) provided with an occupation-type shop and received KRW 2-30,000 won for the following reasons; and (b) provided labor or was not employed. Accordingly, the instant disposition taken on a different premise is unlawful.

B. Determination

1) According to Article 47(1) of the Employment Insurance Act and Article 69(1) of the Enforcement Decree of the Employment Insurance Act, where a beneficiary has provided labor during the period subject to the verification of unemployment, he/she shall report to the head of an employment security office, stating the fact on the first unemployment recognition application filed after the date he/she provided labor. Pursuant to Article 61(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means shall not be paid job-seeking benefits. According to Article 61(2) of the Employment Insurance Act, the act of receiving unemployment benefits without fulfilling his/her duty to report under Article 47(1) of the Employment Insurance Act constitutes cases where the person receives unemployment benefits by fraud or other improper means. In such cases, the head of an employment security office may order the return of all or part of job-seeking benefits already paid pursuant to Article 62(1) of the Employment Insurance Act, Article 105(1)

On the other hand, Article 47(1) of the Employment Insurance Act and Article 92 of the Enforcement Rule of the Employment Insurance Act provide that with respect to whether the provision of labor constitutes employment, where the provision of labor is set at 60 hours or more (including cases where the prescribed working hours are set at least 15 hours a week) and the provision of labor is made for 60 hours or more (including cases where the prescribed working hours are set at least 15 hours a week), where the provision of labor is made as a daily worker under subparagraph 6 of Article 2 of the Employment Insurance Act, regardless of the name such as wages, etc. in return for the provision of labor, where the provision of labor is received in any name such as wages, etc., the case where it is difficult to find regular employment due to the provision of labor by participating in the commercial, agricultural, etc., including an unpaid domestic worker, or other person's work, and the case where the provision of labor under Article 69(2) of the Enforcement Decree of the Employment Insurance Act does not require the same degree as employment, and thus, the provision of labor subject to report under Article 47(1).

The provision of labor or employment should be determined in light of the nature and contents of the work performed on the basis of the above provision, price, repetition and continuity of the work, etc.

2) In full view of the following circumstances acknowledged by the purport of Gap evidence Nos. 1 and Eul evidence Nos. 3, 6, 12, 13, 14, 15, and 17 and the purport of the entire arguments, it is reasonable to deem that the plaintiff received job-seeking benefits without filing a report thereon to the defendant even though he/she provided labor to her her motherel within the period from November 3, 2015 to February 8, 2016, and therefore, the plaintiff constitutes a person who received job-seeking benefits by fraud or other improper means. Accordingly, the instant disposition is lawful.

① The instant disposition was the cause of the information of E, and it seems that E could have falsely informed the Defendant of the content that E did not hear from the Plaintiff.

② On April 1, 2016, the Plaintiff made a statement that “from the beginning of November 2015, 2015, the Plaintiff had tried to work for the management of the facility and operation at the telecom,” and on April 15, 2016, the Plaintiff made a statement that “from the beginning of November 1, 2015, 200, she visited and aided the Plaintiff at the 2-day site for interior and maintenance work for about 1 month from the beginning of November 2015, 2015, she provided the Plaintiff with an opportunity to work for 10,000 won at the 15-day mobile phone (Evidence No. 14), she also provided the Defendant with an opportunity to work for 10,000 won at the 15-day mobile phone (Evidence No. 14), and the Plaintiff provided the Plaintiff with an opportunity to work for 20,000 won at the 15-day mobile phone.”

③ Meanwhile, on June 14, 2016, H made a statement that “the Plaintiff was working as the person responsible for her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

④ On November 13, 2015 through February 12, 2016, the Plaintiff received a non-prosecution disposition regarding the charge of receiving unemployment benefits 4,660,390 won from the Seoul Eastern District Prosecutors’ Office. However, unlike the fact-finding final and conclusive criminal judgment, the same value of evidence as the final and conclusive criminal judgment cannot be granted to the prosecutor’s non-prosecution disposition. Thus, the administrative judgment is not bound by the non-prosecution disposition (see, e.g., Supreme Court Decision 95Da21884, Dec. 26, 1995). The fact-finding of the instant disposition does not conflict with the non-prosecution disposition by the prosecutor.

3. Conclusion

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