(영문) 서울행정법원 2017.4.6. 선고 2016구합71867 판결

The Defendant’s decision on September 24, 2014 to restrict the payment of unemployment benefits, order to return unemployment benefits, and order to additionally collect them shall be revoked.

Reasons

1. Details of the disposition;

A. On February 18, 2014, the Plaintiff recommended Amera Fire Insurance Co., Ltd. to grant employment insurance benefits to the Defendant on February 19, 201, and applied for recognition of eligibility for employment insurance benefits on the 19th of the same month, and received payment of KRW 3.68 million in total on four occasions from the 26th of the same month to May 28, 2014 as follows.

A person shall be appointed.

B. The Plaintiff was commissioned as an insurance solicitor of Samsung Life Insurance Co., Ltd. (hereinafter “instant company”) on May 27, 2014 during the period of unemployment benefits (hereinafter “instant commission”), but upon applying for the recognition of unemployment on May 28, 201, the Plaintiff indicated it as “no one” in the column for confirmation of the details of the application for unemployment recognition and for confirmation of the issuance of a business registration certificate. On September 24, 2014, the Defendant rendered a disposition to restrict payment of unemployment benefits, order for return, additional collection and disposition [total KRW 1.2 million] on the ground that “the Plaintiff received job-seeking benefits without filing a report on the instant commission” on May 28, 2014, on the ground that “the Plaintiff received job-seeking benefits without filing the instant commission” = the pertinent period subject to the recognition of unemployment (total amount of KRW 120,000 won + additional collection of KRW 80,000 won (hereinafter “instant disposition”).

D. On December 23, 2014, the Plaintiff filed a petition for review with the Ministry of Employment and Labor for the instant disposition, but was dismissed on November 19, 2015.

E. On March 26, 2016, the Plaintiff appealed and filed a request for reexamination with the Employment Insurance Review Committee, but was dismissed on May 11, 2016.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, Eul evidence Nos. 1 through 3, 5, 10 through 16, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Unless an insurance solicitor of the instant company can be employed by another company while maintaining his status, and he did not produce sales results from May 27, 2014 to May 28, 2014, the insurance solicitor of the instant company cannot be deemed as being hired as an insurance solicitor of the instant company.

2) Since the “Employment Insurance Guidance” published by the Ministry of Employment and Labor around February 2016, the job category of the insurance solicitor was not considered to be employment, the Plaintiff was unable to find out that the job category of the insurance solicitor of the instant company constitutes employment.

3) If the Defendant orders a return pursuant to Article 35(1) of the Employment Insurance Act and Article 78(1)1 of the Enforcement Rule of the same Act, the amount shall not exceed twice the amount of illegal receipt. It is unreasonable to order the Plaintiff to return KRW 11.20,000,000 equivalent to the amount of illegal receipt (80,000 won) in the instant disposition. 4) At the time when the Plaintiff visited the Seoul Regional Employment and Labor Agency (Seoul Regional Employment and Labor Agency) on June 25, 2014, the Defendant did not initiate an investigation into the Plaintiff’s illegal receipt or demand, and thus, the Plaintiff could file a voluntary report on illegal receipt. However, it is unreasonable to block the Defendant’s employee from receiving the reduction or exemption benefits due to the voluntary report by treating the illegal receipt or demand.

5) Even though the period registered as an insurance solicitor of the instant company during the period subject to unemployment recognition is only two days, the return of 1120,000 won of the job-seeking benefits paid to the pertinent period subject to unemployment recognition (28 days) is a deviation and abuse of discretionary authority.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant commission constitutes employment

According to the overall purport of Gap evidence Nos. 3 and Eul evidence Nos. 4 through 6 and the whole purport of the pleadings, the fact that the plaintiff belonged to the partnership of the company of this case after being commissioned as insurance solicitor of the company of this case on May 27, 2014, and the defendant maintained the status of appointment of the company of this case by July 7, 2014, which confirmed that he/she held office as the plaintiff of this case, and the plaintiff purchased the insurance products of this case as the insured on his/her own on May 29, 2014, and received 200,000 won from the company of this case as new fees (registration fees) for which he/she received at least KRW 40,000 from the company of this case on his/her own around June 2014.

According to the above facts, since the Plaintiff could have provided labor and earned income as an insurance solicitor of the instant company upon the instant commission, it is reasonable to deem that the Plaintiff falls under Article 69(2) of the Enforcement Decree of the Employment Insurance Act and Article 92 subparag. 4 and 7 of the Enforcement Rule of the same Act (any name, such as wages, or any other name, received at least the daily amount of job-seeking benefits under Article 46 of the Act) even though the Plaintiff was able to be employed by another company despite the instant commission, or there was no sales performance by May 28, 2014, which is the last day between the periods subject to the recognition of unemployment after the instant commission.

Therefore, this part of the plaintiff's assertion is without merit.

2) The Plaintiff’s intentional existence of whether the instant commission constitutes employment

A) Facts of recognition

(1) A written application for recognition of eligibility to be used by the Defendant has a business registration certificate or an item stating whether the Defendant is carrying on a self-business as an insurance solicitor, etc., and, even in a written application for recognition of unemployment, there are items describing whether the Defendant has commenced his/her own business such as registration of a business operator and the relevant employment date or self-business commencement date, company name or business contents, etc.

(2) On February 18, 2014, the Plaintiff completed the qualification video education of the Seoul Southern Employment Center, and the employment desire card that the Plaintiff received from the Ministry of Employment and Labor explicitly stated that “insurance design, multi-stage, business withstanding, school building, learning site teacher, franchise, free occupation worker, and all other forms of contracts except employment contracts are self-employed.”

[Ground of recognition] Specific determination of facts without dispute, Eul's entry of evidence Nos. 8, 17, and 18, and the purport of the whole pleadings

Article 61(1) and (2) of the Employment Insurance Act does not provide job-seeking benefits from the date of receiving such benefits by fraud or other improper means to a person who receives the said benefits, and may order the head of an employment security office to fully or partially return all or some of the job-seeking benefits paid to him/her. Here, “a person who received job-seeking benefits by fraud or other improper means” refers to any unlawful act committed by a person ineligible for benefits by pretending eligibility for benefits or concealing employment facts, income occurrence, etc. (see, e.g., Supreme Court Decision 2002Du7494, Sept. 23, 2003). Since the Plaintiff was paid job-seeking benefits by concealing the appointment of the instant case, the Plaintiff constitutes “a person who received job-seeking benefits by fraud or other improper means.”

Furthermore, sanctions against violations of administrative laws are sanctions against the objective fact of violation of administrative laws in order to achieve administrative purposes. Thus, barring special circumstances, such as where a failure to perform duties is not attributable to the violator, barring any justifiable reason, such as where a failure to perform duties is not attributable to the violator, they may be imposed even if there is no intention or negligence (see, e.g., Supreme Court Decision 2002Du5177, Sept. 2, 2003).

In this case, there is no circumstance that the Plaintiff could not be responsible to the Plaintiff for failure to report the fact of the instant commission, and therefore, this part of the Plaintiff’s assertion is without merit.

3) Whether the amount returned and collected additionally is appropriate

According to Article 62(1) of the Employment Insurance Act, Article 80 subparag. 1 of the Enforcement Decree of the same Act, main sentence of Article 104 subparag. 2, and Article 105 of the Enforcement Rule of the same Act, where the head of an employment security office fails to report the provision of labor during the period subject to unemployment recognition as in this case when he/she files an application for unemployment recognition and only one fraudulent act exists, he/she shall order the person to return only the job-seeking benefits paid for the period of unemployment recognized as an application for unemployment recognition, and may additionally collect an amount equivalent to

According to the above provisions, the amount to be returned to the Plaintiff in the instant case is KRW 1.12,00,000 paid as job-seeking benefits during the period subject to the fourth unemployment recognition, and the amount of illegal receipt subject to additional collection is KRW 80,000,000,000 from May 27, 2014, the date of the instant commissioning to the next day, and thus, cannot be said to have any error in the calculation of the amount

Meanwhile, Article 35(1) of the Employment Insurance Act and Article 78(1)1 of the Enforcement Rule of the same Act, which the Plaintiff cited as the ground for this part of the claim, relate to an order to return “a person who received or intends to receive support for employment security and vocational skills development projects by fraud or other improper means,” and are irrelevant to the instant case. Accordingly, the Plaintiff’s assertion on this part is without

4) Whether the provisions on voluntary declaration reduction and exemption apply

A) Facts of recognition

Comprehensively taking account of the respective descriptions of evidence Nos. 9, 13, and 19 and the overall purport of oral arguments, the Plaintiff applied for unemployment benefits for 28 days without reporting the instant commissioning at the time of filing an application for unemployment recognition to the Defendant on May 28, 2014. The Defendant, around May 30, 2014, was aware of the information that the Plaintiff purchased industrial accident insurance (special employment) as an insurance solicitor on May 27, 2004 after being aware of the information, managed the Plaintiff as a person suspected of unjust receipt of overlapping benefits; the Plaintiff visited the Defendant to obtain unemployment recognition on June 25, 2014 and interview with the person in charge of unemployment verification; and the fact that the instant commissioning was refused to prepare a written statement of opinion and returned to Korea can be recognized.

B) Specific determination

According to the above facts, it is difficult to view that the Plaintiff voluntarily reported the receipt of job-seeking benefits prior to the interview at the time of the interview with the Defendant on June 25, 2014, or visited with such intent, and it is reasonable to view that at the time the Defendant had already confirmed and commenced the status of the Plaintiff’s receipt of job-seeking benefits.

Therefore, the plaintiff's assertion on this premise is without merit.

5) Whether the discretionary authority is deviates or abused

With regard to the scope of a return order, Article 62(1) of the Employment Insurance 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 job-seeking benefits paid to him/her (Article 104 of the Enforcement Rule of the same Act), and Article 104 of the Enforcement Rule of the same Act provides that "the person who has received job-seeking benefits by fraud or other improper means shall return all or part of the job-seeking benefits paid to him/her (Article 62(1)1), fails to report or makes a false report during the period subject to unemployment recognition at the time of application for unemployment recognition, or reports differently from the fact that the job-seeking activities during the period subject to unemployment recognition at the time of application for unemployment recognition are reported on one occasion and only the job-seeking benefits (Article 62(1)2) recognized as such, in principle, received for the period subject to unemployment recognition

Therefore, there is no room for the Defendant to deviate from or abuse its discretionary power to issue a return order pursuant to the above provision of the Enforcement Rule, and the Plaintiff’s assertion on this part is without merit.

3. Conclusion

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