(영문) 울산지방법원 2019.1.24.선고 2018구합610 판결

A. On December 26, 2017, the Plaintiff applied for unemployment benefits to the Defendant on December 26, 2017, and recognized the total of 240 days of benefits from January 2, 2018 to August 29, 2018. Thereafter, the Plaintiff was to be an insurance solicitor of B Company from February 5, 2018, and was paid only 34 days of unemployment benefits from the said 240 days.

B. On August 28, 2018, before the date of 12 months as an insurance solicitor of the Company B, the Plaintiff started a real estate business and started a lease business, and prepared a change of business to a real estate sales business on the 31st of the same month, including completing business registration.

C. On June 24, 2018, July 3, 2018, and August 24, 2018, the Plaintiff sought inquiry as to whether the payment criteria for early re-employment allowances under Article 84(1)2 of the Enforcement Decree of the Employment Insurance Act can be satisfied in cases where the total sum of the business period exceeds 12 months by engaging in real estate sales business following an insurance solicitor.

D. As to the Plaintiff’s above inquiries, the Defendant sent a reply to the Plaintiff by mail on July 3, 2018, July 6, 2018, and August 31 of the same year, and on August 22, 2018, the Defendant sent a reply to the Plaintiff by mail (hereinafter “the instant reply”).

E. On September 14, 2018, the Plaintiff asserted that the instant postal reply was based on the Defendant’s erroneous statutory interpretation and filed a lawsuit seeking revocation of the rejection disposition with this court. The purport of the instant postal reply is as follows.

In the interpretation of Article 84 (1) 2 of the Enforcement Decree of the Employment Insurance Act, the term "business" under Article 84 (1) 2 of the Enforcement Decree of the Employment Insurance Act is limited to cases where the pertinent business is operated after reporting the preparatory activities to run the pertinent business as re-employment activities in advance during the given benefit period and after receiving the recognition of unemployment. Therefore, the relevant business reported as re-employment activities is not run for at least 12 months but is converted into a new business that has not

[Ground of recognition] Facts without dispute, Gap evidence 1 to 11, Eul evidence 1 to 3, the purport of the whole pleadings

2. The plaintiff's assertion

Since both insurance solicitors and real estate sales business are businesses, the total period of business should be interpreted to include the sales business in cases where the Plaintiff engages in real estate sales business following the insurance solicitors of the company B. However, in cases where the total sum of the business period exceeds 12 months, the Plaintiff satisfies the payment criteria for early re-employment allowances under Article 84(1)2 of the Enforcement Decree of the Employment Insurance Act. In addition, the Plaintiff satisfies all the requirements for receiving early re-employment allowances. The instant postal reply to the purport that the Plaintiff is not eligible for early re-employment allowances should be revoked as illegal rejection disposition.

3. Determination on the lawfulness of the instant lawsuit

A. Summary and ex officio determination of this safety defense

As to the plaintiff's assertion, since the letter of communication of this case is merely a notification of administrative interpretation of the plaintiff's inquiry, the defendant's defense that the mail reply of this case does not constitute a disposition subject to appeal litigation, (1) examines whether the mail reply of this case is subject to revocation litigation, and (2) determine ex officio whether the plaintiff's lawsuit of this case satisfies the requirements of rejection

B. Determination as to whether a revocation suit exists

A disposition subject to a revocation lawsuit refers to an exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions (Article 2(1)1 of the Administrative Litigation Act) that directly relate to the rights and obligations of the people (see Supreme Court Decision 2007Du10198, Nov. 15, 2007).

In this case, in full view of the following facts: (a) the Plaintiff asked at a national newspaper that he would be entitled to early re-employment allowance; and (b) the Defendant asked at the national newspaper whether he would be entitled to receive early re-employment allowance; and (c) further, the Defendant’s reply to the instant postal newspaper is merely an identification of whether the details of the instant postal correspondence and the Plaintiff’s inquiry are entitled to receive early re-employment allowance under the premise of the future plan; and (d) the Defendant’s reply to the Plaintiff’s inquiry is merely an administrative disposition that directly affects the Plaintiff’s rights and duties, and thus, cannot be deemed an administrative disposition that directly affects the Plaintiff’s right and duties (see Supreme Court Decision 91Nu4195 delivered on August 9, 191).

Even if the instant postal correspondence is deemed as the Defendant’s rejection of the application for early re-employment allowance for the Plaintiff, in order to become a disposition subject to revocation litigation by an administrative agency, the pertinent citizen who filed the application must have the right to request the administrative agency to act in accordance with the law or sound reasoning. According to Article 64 of the Employment Insurance Act and Article 86(1) and (2) of the Enforcement Decree of the same Act, the Plaintiff cannot be deemed as having the right to claim early re-employment allowance for the Plaintiff, and such right cannot be deemed as having been recognized in light of sound reasoning.

D. Sub-committee

The plaintiff's lawsuit of this case does not exist or does not meet the requirements of rejection disposition.

4. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.