(영문) 수원지방법원 2017.9.14.선고 2016구합69513 판결

A. The Plaintiff is the preliminary officer on board who works on board as a mate after called up to support the work to transport goods and munitions in wartime, etc. in accordance with the Military Service Act or the work related thereto.

나. 원고는 승선근무예비역 최초 편입일인 2012. 2. 1.부터 5년 내에 3년간 선박을 보유·관리하는 민간 해운·수산업체에서 승선근무를 하여야 하는데, 소집기간 중 다음표 기재와 같이 위 업체에 해당하는 웰슨쉽매니지먼트코리아 주식회사(이하 '이 사건 회사'라 한다)와의 고용관계가 종료된 후 피고에게 고용보험법 제40조 제1항에 따른 구직급여를 신청하여 합계 4,760,000원을 지급받았다.

A person shall be appointed.

C. In the case of onboard ship reserve service, even if the Ministry of National Defense loses the insured status under the Employment Insurance Act, it shall be prohibited from commercial activities and concurrent offices pursuant to Articles 40-4 (7) and 40-8 (3) of the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 2720, Jun. 14, 2016; hereinafter “Enforcement Decree of the Military Service Act”) during the period of onboard ship reserve service (the last five years) until the call-up is cancelled. Thus, on May 24, 2016, the Defendant: (a) presented the reason that “on-the-job reserve service cannot meet the requirements under Article 40 (1) 2 and 4 of the Employment Insurance Act as a person who is not entitled to receive wages by providing labor to a third party; and (b) notified that the Plaintiff return the job-seeking benefits amounting to the above 4,760,000 won during the period of onboard ship reserve service (hereinafter “instant disposition”). Accordingly, the Plaintiff was dissatisfied with the decision of dismissal.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5 (including branch numbers, hereinafter the same shall apply), Eul evidence No. 3, the purport of the whole pleadings

2. The parties' assertion

With respect to the Defendant’s assertion that the instant disposition is lawful on the grounds of its disposition and relevant statutes, the Plaintiff asserted the following grounds and asserted that the said disposition is unlawful.

A. Non-existence of grounds for disposition

The Plaintiff met the requirements of Article 40(1) of the Employment Insurance Act, and was paid job-seeking benefits lawfully.

B. Violation of the principle of proportionality and the principle of protection of trust

Even if the Plaintiff failed to meet the requirements of Article 40(1) of the Employment Insurance Act, the Plaintiff’s failure to receive job-seeking benefits by unlawful means and the number of years has already elapsed since the date of receiving job-seeking benefits, the instant disposition not only contravenes the principle of proportionality in withdrawing or revoking the beneficial administrative act, but also violates the principle of protection of trust, as it harms the Plaintiff’

3. Whether the instant disposition is lawful

(a) Relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. Determination

1) In light of the following circumstances that can be seen by comprehensively taking account of the facts acknowledged as above and the purport of the entire pleadings, it is reasonable to view that onboard ship reserve personnel also acquired the right to receive job-seeking benefits in the event that they meet the requirements for supply under

① At the same time, onboard ship reserve personnel, such as the Plaintiff, have the status of performing the duty of military service as reserve position under the Military Service Act during the period of call-up, and at the same time, have been employed by private enterprises and paid wages after being paid wages. As such, onboard ship reserve personnel contribute to the formation of financial resources for employment insurance by paying employment insurance premiums, and it is justifiable to block access to insurance funds to job-seeking benefits itself while having the status of onboard ship reserve personnel.

(2) Article 10 of the Employment Insurance Act and Article 3 of the Enforcement Decree of the same Act stipulate the eligibility for exclusion from the Employment Insurance Act, including public officials, and onboard ship reserve personnel shall not be included therein.

(3) Article 40(1)2 and 4 of the Employment Insurance Act provides that “The Ministry of Employment and Labor’s established rules for the recognition of unemployment and reemployment support shall stipulate that the intention to work and ability to actively make efforts for reemployment as a requirement for the supply of job-seeking benefits.” Article 40(1)2 and 4 of the Employment Insurance Act provides that “The Ministry of Employment and Labor’s positive intent to find employment, the ability to work, and the ability to provide labor refers to the mental, physical, and environmental ability to receive wages in return for the provision of labor (Article 2(1)4).” Article 40-4(7) of the Enforcement Decree of the Military Service Act provides that onboard ship reserve personnel are subject to certain restrictions in their workplace and duties (see Articles 40(1) and 40-4(1) of the Enforcement Decree of the Military Service Act). However, since onboard ship reserve personnel are not able to actively engage in on onboard ship reserve service or to be re-employment due to various circumstances, such as suspension or discontinuance of onboard ship reserve service, etc.

Furthermore, in light of the purport of the principle of prohibition of profit-making and concurrent office of onboard ship reserve personnel (the delegation is made pursuant to Article 23-2(3) of the Military Service Act) and the purport of the principle of prohibition of comprehensive delegation, it is more true in view of the fact that it should be prudent to limit the entitlement to job-seeking benefits under the Employment Insurance Act, which belongs to social fundamental rights, by restricting the freedom of occupation prescribed by the Enforcement Decree of the Military Service Act. 4) In addition, onboard ship reserve personnel should work onboard ship reserve personnel for three (3) years during the maximum five (5)-year period of onboard ship reserve service. In addition, they are not naturally employed by other companies or are paid by the State for re-employment (this can be less than two (2) years during which they are actually unable to work onboard ship). Accordingly, the purport of the Employment Insurance Act system including unemployment benefits system, including the provision of necessary benefits for a worker’s livelihood when they are unemployed, may also be applied even in cases where they work onboard ship reserve personnel.

⑤ The Ministry of Employment and Labor recognizes the eligibility for onboard ship reserve service with a transfer of the ship management company, such as the closure of business or reduction of the number of ships, and the status of onboard ship reserve service is in conflict with the Defendant’s assertion that there is no eligibility for benefits on the sole basis of the circumstance that the ship management company has been holding the status of onboard ship reserve service.

2) Therefore, the instant disposition, based on the premise that the Plaintiff failed to meet the requirements under Article 40(1)2 and 4 of the Employment Insurance Act on the ground that the Plaintiff was onboard ship reserve personnel, does not exist. Therefore, the instant disposition should be revoked on the ground that the Plaintiff’s remaining arguments were unlawful without having to further examine.

4. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the ground of the reasons.