(영문) 울산지방법원 2011.1.19. 선고 2010구합1693 판결

A. The Plaintiff filed an application with the Defendant for a new employment promotion subsidy for D and E, who is an employee of the instant center, as the representative of C’s children’s welfare center located in Kimhae-si B (hereinafter “the instant center”), as indicated in attached Table 1, to the Defendant on the date of application as indicated in attached Table 1, and received the grants indicated in attached Table 4 on the date of payment indicated in (B) of the same Table.

B. On March 9, 2010, the Defendant issued an order for the return of the amount of incentives listed in the attached Table 1 through 5, and 12 from among the incentives listed in the attached Table 3 (No.4), Article 35(1) and (2) of the former Employment Insurance Act (amended by Act No. 9315, Dec. 31, 2008); Article 56(1)1 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21510, May 28, 2009); Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009); Article 78(2) of the former Enforcement Rule of the Employment Insurance Act (amended by Presidential Decree No. 2518, Dec. 31, 2008; Presidential Decree No. 2515, Mar. 15, 2012>

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 16, Eul evidence 2-1 and Eul evidence 2-2, the purport of the whole pleadings.

2. Whether the disposition of this case is unlawful

A. The plaintiff's assertion

Article 35(2) of the former Employment Insurance Act (amended by Act No. 9315 of Dec. 31, 2008), Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319 of Apr. 1, 2009), which was enforced at the time when the Plaintiff first requested the Defendant to pay the grant, limited the additionally collected amount to the amount recognized as receiving the grant by false or other unlawful means (the amount equivalent to the additionally collected amount). In light of the above, the Plaintiff’s written confirmation of business owner prepared by the Plaintiff at the time of the Plaintiff’s request for the grant, stating that “if the Plaintiff received the grant by unlawful means, the additionally collected amount should be limited to the amount to be additionally collected, and the additionally collected amount should be limited to the amount to be additionally collected at the time of the Plaintiff’s request for the grant.”

(b) Related statutes;

It is as shown in the attached Form.

(1) D-related

(A) D, from May 15, 2008, served as a social worker at the instant center from May 15, 2008 as F.

(B) On May 19, 2008, the Plaintiff had D register job seeking with the Ministry of Labor using computers established in the instant center.

(C) The Plaintiff prepared a labor contract with D as of September 8, 2008 by entering into the employment contract, and applied for a bounty to the Defendant on the date of application indicated in attached Table 1 and received the bounty stated in attached Table 2 on the date of payment.

(2) E-related

(A) E served as a living welfare worker at the instant center from September 1, 2008 as G residents.

(B) On August 29, 2008, the Plaintiff prepared a labor contract with E as of December 15, 2008 with the knowledge that E was registered as a job-seeking in the Ministry of Labor, and prepared a labor contract with E as of December 15, 2008, and applied to the Defendant on the date of application indicated in the attached Table 1, and received the grants stated in the attached Table 2 within the date of payment indicated in

(3) On November 6, 2008, the Plaintiff prepared and submitted a business owner’s certificate to the Defendant. The said business owner’s certificate states that “in the event that the Plaintiff received the incentives by false or other unlawful means, the Plaintiff was notified by the Defendant that the Plaintiff would return the incentives and be subject to additional collection of 10% of the amount of illegal receipt.”

(4) On March 9, 2010, the Defendant: (a) ordered the Plaintiff to return KRW 7,664,510 of the incentives stated in attached Table 4 that have been paid to the Plaintiff; and (b) issued an additional collection of KRW 1 p.m. in attached Table 1 p.m. as stated in attached Table 38(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319 of Apr. 1, 2009); and (c) issued an additional collection of the incentives that the Plaintiff received on or before April 1, 2009 pursuant to Article 78(1) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 319 of Apr. 1, 2009); and (d) the amount of the incentives paid on or after April 1, 2009 pursuant to Article 78(1)35 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor Ordinance of Feb. 38, 20105).

[Reasons for Recognition] Facts, facts without dispute, Eul evidence Nos. 1, 2, 4 and 5 (including each number), the purport of the whole pleadings

D. Determination

(1) With respect to the instant return disposition, a new employment promotion subsidy is paid to an employer who employs those persons who have particular difficulty in finding employment or takes measures necessary for their employment stability under the ordinary conditions of the labor market. Pursuant to Article 26(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010), where the employer employs those who are unemployed beyond the unemployment period for each person subject to the employment security office or other institution prescribed by Ordinance of the Ministry of Labor, as insured by the business owner. According to the above facts, according to the aforementioned facts, the unemployment period to be satisfied for receiving new employment promotion subsidy for D or E under the age of 29 or below is deemed to be at least three months pursuant to subparagraph 5 of the attached Table 1, and D or E has not passed three months since the date of commencement of employment at the instant center, as it did not meet the requirements for new employment promotion.

Therefore, the fact that the Plaintiff prepared and submitted a labor contract as if he/she had employed D and E three months after the date of the registration of job seeking constitutes the fact that the Plaintiff received the grant by fraud or other wrongful means. Thus, the disposition of return of this case is lawful.

(2) As to the disposition of additional collection of this case

Among the additional collection disposition of this case, the Plaintiff did not dispute the part concerning the additional collection disposition of incentives illegally received prior to April 1, 2009. Thus, the Plaintiff’s additional collection disposition of this case (hereinafter referred to as “additional collection disposition of this case”) concerning the amount of incentives illegally received after April 1, 2009 and additionally collected five times the said amount, i.e., the part that additionally collected five times the said amount, i.e., the attached Table 5) is lawful.

(3) On the grounds that the Plaintiff was subject to additional collection at least 20 times the amount already received from the previous 20-year enforcement rules, including the following circumstances, i.e., additional collection at 10 times the amount already received from the previous 20-year enforcement rules (amended by Ordinance of the Ministry of Labor No. 319, Apr. 1, 2009). However, if the Plaintiff were subject to additional collection at least 20 times the amount already received from the previous 20-year enforcement rules, then the Plaintiff would be subject to additional collection at least 9 times the amount already received from the previous 20-year enforcement rules, such as 30-year enforcement rules. The grounds that the Plaintiff would be subject to additional collection at least twice the amount already received from the previous 20-year enforcement rules, and that the amount would be subject to additional collection at least twice the amount already received from the said 30-year enforcement rules for the reasons that the Plaintiff would be subject to additional collection at least twice the amount already received from the 9-year enforcement date.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.