(영문) 서울행정법원 2018.7.10. 선고 2017구단30606 판결

The Defendant’s revocation of the restriction on the payment of unemployment benefits, the order to return, and the disposition of additional collection against the Plaintiff on January 12, 2016.

Reasons

1. Details of the disposition;

A. On July 15, 2014, the Plaintiff retired from employment at B hospital, and on December 1, 2014, upon applying for recognition of eligibility for employment insurance to the Defendant, recognized eligibility of KRW 210 days for the fixed benefit payment days, KRW 40,000 for the daily benefit of job-seeking benefits, and received KRW 6,280,000 in total for job-seeking benefits for 157 days from December 8, 2014 to June 10, 2015 as follows.

A person shall be appointed.

B. On January 12, 2015 and February 9, 2015, which is the second unemployment recognition date, the Defendant confirmed that the Plaintiff had kys in Korea, staying in Thailand as of January 12, 2015, and applied for the recognition of unemployment (hereinafter referred to as “instant application”) via the Internet using the Plaintiff’s authorized certificate, and that the Plaintiff received job-seeking benefits by “any false or other unlawful means.” On December 17, 2016, the Defendant rejected the Plaintiff’s request on December 17, 2016, based on the main sentence of Article 61(1) and Article 62(1) of the Employment Insurance Act, ① the restriction on the payment of job-seeking benefits, ② the sum of job-seeking benefits paid upon the instant application and subsequent application, ③ the Plaintiff’s request for reexamination, but the Plaintiff was also dismissed as of December 17, 2016, ③ the two additional collection of the amount of job-seeking benefits (hereinafter referred to as “the instant request for reexamination”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 through 3, and the purport of the whole pleadings

A. The plaintiff's assertion

1) The Plaintiff needs to receive medical care abroad due to health aggravation. In such a case, the Plaintiff asked the public official in charge of the Defendant whether a third party can file an application for the recognition of unemployment on behalf of the Defendant, while staying in a foreign country at the time when the public official in charge of the Defendant is informed that it is possible to do so, and the Plaintiff was actually engaged in the domestic job-seeking activities during the period subject to the recognition of unemployment. As such, the Plaintiff received job-seeking benefits upon the instant application by referring to “any false or other unlawful means” under the main sentence of Article 61(1) and Article 62(1) of the Employment Insurance

80,000 won.

2) Even if there were grounds for the instant disposition, it is unreasonable to order the Plaintiff to return the amount of job-seeking benefits that the Plaintiff directly requested and received in addition to the amount of job-seeking benefits received upon the instant application, and to additionally collect additional duties.

B. Relevant statutes

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

C. Determination

(i) the existence of the reasons for the measure

A) According to Article 40(1)2 and 40(1)4, and Article 44(2) and (3) of the Employment Insurance Act, in order to receive job-seeking benefits, the insured with severance from employment actively satisfies the substantive requirements, such as making efforts to re-employment in a “unemployed condition despite having the intent and ability to work” and the date designated by the head of the Employment Security Office (hereinafter referred to as “date of unemployment recognition”), and must meet all the procedural requirements, such as receiving unemployment recognition.

B) In particular, with regard to procedural requirements, Article 44(2) of the Employment Insurance Act provides that an eligible recipient who intends to obtain recognition of unemployment shall, in principle, report the date designated by the head of an employment security office within the scope of one week through four weeks from the date of unemployment declaration, namely, the date of the employment security office and the date of the employment security office’s efforts for reemployment. In the proviso, “the method of recognition of unemployment for a person who falls under any of the following subparagraphs shall conform to the standards prescribed by Ordinance of the Ministry of Employment and Labor.” Article 65 subparag. 9 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016) provides that an eligible recipient may report whether to engage in reemployment activities and income generated through the Internet, and Article 44(2)3 of the former Enforcement Rule of the Employment Insurance Act provides that the head of an employment security office may directly report his/her income generated through the Internet (amended by Ordinance of the Ministry of Employment and Labor No. 96, Dec. 30, 2016).

On the other hand, Article 44(3) of the Employment Insurance Act provides that "Where an eligible recipient falls under any of the following subparagraphs, he/she may obtain recognition of unemployment by submitting a certificate stating the reasons why he/she could not attend the employment security office, and where he/she could not appear at the employment security office for seven consecutive days due to illness or injury (Article 1)." (Article 44(1)2 of the Employment Insurance Act provides that "Where an eligible beneficiary could not appear at the employment security office for seven consecutive days due to interview with the job offerer through the job placement service of the employment security office (Article 2). (Article 44(2)2 of the Employment Insurance Act provides that "Where an eligible beneficiary could not attend the employment security office for vocational skills development training and training

In full view of the language, structure, form, and content of the above provisions, the Employment Insurance Act provides that an eligible recipient who intends to obtain recognition of unemployment shall, in principle, be present at the Employment Security Office in the unemployment recognition date and apply for job-seeking benefits, and shall only list cases where the beneficiary is able to obtain the unemployment recognition without direct attendance. The purport of the provision is to resolve economic difficulties caused by unemployment by paying the amount of benefits necessary for his/her daily life in the event of his/her unemployment, and at the same time, to prevent unfair job-seeking benefits from failure to receive job-seeking benefits, and to induce the beneficiary to be re-employed as much as possible if he/she were eligible recipient. Therefore, it is reasonable to view that the eligible recipient who intends to obtain the unemployment recognition through Internet should report his/her efforts to re-employment by directly using an authorized certificate, as in cases where he/she was "direct presence at least in the

C) Therefore, if the Plaintiff was paid job-seeking benefits through a third party’s application while staying abroad, even if the Plaintiff satisfied the practical requirements of the beneficiary of job-seeking benefits, it should be deemed that the Plaintiff’s payment of job-seeking benefits constitutes a case where the Plaintiff received job-seeking benefits based on “any false or other unlawful means” under the main sentence of Article 61(1) and Article 62(1) of

Meanwhile, the Plaintiff asserts to the effect that when he stays abroad from the public official in charge of the Defendant, he was given a guidance to the effect that the application by a third party was possible. However, there is no objective evidence to acknowledge the above assertion, and even if such fact exists, it may not affect the recognition of the above disposition reason. The Plaintiff’s assertion in this part is without merit.

2) Whether the discretion is deviates or abused

A) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation, which is the reason for the disposition, and the public interest to be achieved by the relevant act of disposition, as well as all the relevant circumstances. In addition, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinance, it is nothing more than that prescribed in the administrative agency’s internal business rules, and it is not effective externally to the public or the court. Whether the pertinent

Therefore, since the above disposition disposition cannot be deemed lawful as it meets the above disposition criteria, it should not be determined that the above disposition disposition is not in itself consistent with the Constitution or laws, or that a punitive administrative disposition based on the above disposition criteria is considerably unreasonable in light of the content of the act of violation and the contents and purport of the relevant Acts and subordinate statutes, unless there exist reasonable grounds to believe that the disposition is considerably unfair in light of the contents and purport of the relevant Acts and subordinate statutes (see Supreme Court Decision 2007Du6946, Sept. 20, 2007).

B) In light of the above legal principles, considering the following circumstances, which can be seen by adding the purport of the entire pleadings to the statement Nos. 4 and 4 of the instant case, it is difficult to deem that the instant disposition was excessively harsh to the Plaintiff compared to the public interest intended to achieve by itself. The Plaintiff’s assertion on this part is without merit.

① Even if a beneficiary certificate issued by the Defendant to the Plaintiff is designated as a beneficiary of Internet unemployment benefits, the phrase “I must prepare and transmit an application for recognition of unemployment with his/her authorized certificate from the employment insurance website.”

According to the main sentence of Article 61(1) of the Employment Insurance Act, a person who has received, or attempted to receive, unemployment benefits by fraud or other improper means does not receive, job-seeking benefits from the date on which he/she received, or attempted to receive, such benefits. Under Article 62(1), the head of an employment security office may order the person who has received job-seeking benefits by fraud or other improper means to return all or part of the job-seeking benefits received, and may additionally collect an amount not exceeding the amount equivalent to the amount of job-seeking benefits received by fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Employment and Labor. Articles 104 and 105 of the former Enforcement Rule of the Employment Insurance Act are deemed administrative rules that set internal standards for handling job-seeking benefits and additional collection under Article 62(1) of the Employment Insurance Act in light of its form and content. It is difficult to find reasonable grounds to recognize the instant disposition in light of the substance of the offense and the content and purport of the relevant statutes.

(3) According to Article 104 subparagraph 1 of the above Enforcement Rule, in principle, the order to return the total amount of illegal receipt is issued. The defendant ordered only the return of job-seeking benefits that the plaintiff received upon the application and the subsequent application, and according to Article 105 (1) of the above Enforcement Rule, the plaintiff should order the additional collection of the total amount of job-seeking benefits that the plaintiff received upon the application of this case. The defendant additionally collected half of the amount. The content of the disposition in this case is more favorable

3. Conclusion

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