Whether the term “in the event of employment” under Article 84(1)1 of the former Enforcement Decree of the Employment Insurance Act is construed as “in the event of employment,” and whether the period of employment relationship before and after the period of employment is included in the “period of continuous employment” under the above provision (affirmative)

Article 84(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25022, Dec. 24, 2013; hereinafter “Enforcement Decree”) provides that “Where a re-employed business owner continues to engage in a business for at least six months” and “where a person continues to engage in a business for at least six consecutive months” (Article 64(1) of the Employment Insurance Act and “where a person engages in a business for profit-making purposes,” respectively. Although the Employment Insurance Act does not have a definition on “employment”, in light of the content, form, structure, and purpose of early re-employment allowance, etc. of various statutes related to employment, “in cases of employment” under Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act are not limited to cases of re-employment through an employment contract or labor contract, and it is reasonable to interpret “where a person continues to engage in a business for at least six consecutive months” and “where a person continues to engage in a business for remuneration, remuneration, or other similar period before or after temporary suspension of employment.”

Article 64(1) of the Employment Insurance Act; Article 84(1) of the former Enforcement Decree of the Employment Insurance Act (Amended by Presidential Decree No. 25022, Dec. 24, 2013);

Supreme Court Decision 2009Du19892 Decided December 8, 2011 (Gong2012Sang, 137)

Plaintiff

The Chief of the Gangseo branch office of the Central Regional Employment and Labor Office

Seoul High Court Decision (Chuncheon) 2015Nu30 decided May 20, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 64(1) of the Employment Insurance Act provides, “The early re-employment allowance shall be paid if an eligible recipient is re-employed in a stable occupation or self-employed business for profit, and if the eligible recipient satisfies the criteria prescribed by Presidential Decree.” Article 84(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25022, Dec. 24, 2013; hereinafter “Enforcement Decree”) further embodys the above provision and further re-employments with the eligible recipient remaining for at least 30 days after the waiting period under Article 49 of the Act as of the day immediately before the date of re-employment, where the eligible recipient is re-employed for at least 30 days as of the day immediately before the date of re-employment (Article 1) or “where a re-employed business operator continues to engage in business for at least six months” (Article 2).

The purpose of this early re-employment allowance is to minimize the period of job-seeking and to encourage stable re-employment by paying a certain amount of money equivalent to the unpaid portion of job-seeking benefits, regardless of the type of self-employment or self-employment prior to receiving all job-seeking benefits.

Article 84(1) of the Enforcement Decree of the Employment Insurance Act provides that “where a re-employed business owner continues to engage in a business for at least six months” (Article 84(1)1) and “where a re-employed business operator continues to engage in a business for at least six months” (Article 64(1)2 of the Act) and “where a person engages in a profit-making business through ice,” respectively. Although the Employment Insurance Act does not provide for the definition of “employment”, “where a person engages in a profit-making business” does not include the content, form, structure, and purpose of early re-employment allowance under Article 84(1)1 of the Enforcement Decree, “where a person is employed” is not limited to cases where a person is re-employed through an employment contract or labor contract (see Supreme Court Decision 2009Du19892, Dec. 8, 2011). In addition, it is reasonable to interpret that “where a person is employed in consideration of remuneration, wage, or other similar income during the period of temporary suspension or suspension of employment.”

2. According to the reasoning of the lower judgment, the following facts are revealed.

A. On February 22, 2013, the Plaintiff applied for recognition of eligibility for employment insurance benefits on the ground that he/she was unemployed in Han-gu Capital Co., Ltd. on February 22, 2013. On February 28, 2013, the Plaintiff recognized eligibility for benefits of KRW 210,00 for the fixed benefit payment days and KRW 34,992 for the daily benefit amount, and received job-seeking benefits amounting to KRW 244,940 from March 7, 2013 to March 14, 2013.

B. After receiving unemployment benefits, the Plaintiff entered into a contract with the ○○ Elementary School, △△△△ School, and △△ Elementary School, respectively. The term of the contract was from March 12, 2013 to February 28, 2014; the △△△△ School was from March 19, 2013 to December 27, 2013; the △△△ School was from March 19, 2013 to July 19, 2013; and the △△△ School was from March 1, 2013 to July 19, 2013 and from August 26, 2013 to November 29, 2013. The ○○ Elementary School and △△△△ School did not pay remuneration to the Plaintiff during the vacation period.

C. On September 16, 2013, the Plaintiff filed a claim for early re-employment allowance with the Defendant on the ground that he/she was employed on March 12, 2013 at ○ Elementary School. However, on October 17, 2013, the Defendant rendered the instant disposition rejecting the payment of early re-employment allowance on the ground that he/she did not constitute continuous employment for six months or longer since he/she did not provide labor during the school period.

3. Examining these facts in light of the aforementioned legal principles, given that the Plaintiff received remuneration in return for work as a after-school lecturer at ○○ Elementary School, it should be deemed that the fixed benefit payment days for job-seeking benefits remain for at least 30 days and re-employed by employment. Although the above schools entered into a contract with the Plaintiff with the Plaintiff with the exception of the school period, it is reasonable to view that the continuous employment relationship with the Plaintiff is maintained only due to the nature of the after-school lecturer’s duties. Therefore, the Plaintiff should be deemed to fall under the requirements under Article 84(1)1 of the Enforcement Decree as of the date of the instant disposition, i.e., “where a re-employed business owner continues to be employed for at least 6 months.”

Nevertheless, the lower court determined that the instant disposition, which did not pay early re-employment allowances, was lawful on the ground that the Plaintiff did not constitute the case where the Plaintiff was employed for not less than six months on account of the following: (a) the Plaintiff was only obligated to observe the class hours and place of class under the contract, not subject to the school service regulations or the rules of employment; (b) was not paid as fixed wage;

The lower court erred by misapprehending the legal doctrine on the interpretation of Article 84(1)1 of the Enforcement Decree, which sets the requirements for the payment of early re-employment allowances, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of

4. The Plaintiff’s appeal is with merit, and the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Chang-suk (Presiding Justice)