2010Guhap2005 Order to refund new employment promotion subsidy, etc.

A

The Head of the Seoul Regional Labor Administration's Republic of Korea

April 2, 2010

April 30, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On October 18, 2009, the part exceeding 22,800,000 won among the orders of return and collection of 73,076,440 won, such as the subsidies for promotion of new supply and demand, which the Defendant made to the Plaintiff on October 18, 200.

1. Details of the disposition;

A. The Plaintiff acquired the qualification as a certified tax accountant on September 2001, and operated his office in Gangnam-gu Seoul from July 2002 to operate his office.

B. During the period from May 4, 2006 to August 12, 2009, the Plaintiff: (a) newly employed the persons indicated in C, D, etc. as employees of the above office; (b) continuously employed them for at least 30 days after the expiration of the period of childcare leave; and (c) employed them as substitute for E during the period of childcare leave; (b) applied for the payment of each of the subsidies to the Defendant for the payment of each of the subsidies from the Defendant during that period.

[Attachment]

A person shall be appointed.

C. The Defendant: (a) as indicated in the “reasons for Disposition” column in the above table, (b) received or received the grant by unlawful means by stating the new employment dates of the subjects listed in the above table 1 through 4 differently from the actual employment dates; and (c) as such, the period during which the payment of the grant was restricted from May 4, 2006 to August 11, 2010 after receiving the regulation under Article 56(2) of the Employment Insurance Act, and constitutes the period during which the payment of the grant was made; (c) the payment of the grant to the subjects listed in the above table 5 to 12 during the above period shall be returned; (d) the childcare leave was reinstated after the termination of the childcare leave and the E was not employed for more than 30 days; and (e) even if the childcare leave was not newly employed due to C’s childcare leave, the Defendant was determined to have received the grant as described in the above table 13 and

D. On October 18, 2010, the Defendant issued an order for additional collection to the Plaintiff pursuant to Article 35(1) and (2) of the Employment Insurance Act (amended by Act No. 9792 of Oct. 9, 2009), Article 26-5(1) and (2) of the former Employment Insurance Act (amended by Act No. 8429 of May 11, 2007; hereinafter referred to as the "former Act"), Article 56(1) and (2) of the Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21928 of Apr. 27, 2007), Article 35-4(1) and (2) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 20036 of Apr. 27, 2007; hereinafter referred to as the "Enforcement Decree of the Employment Insurance Act"), and additionally collected the amount of the pertinent notice and additional collection to the Plaintiff.

[Reasons for Recognition] Evidence No. 1, Evidence No. 1-1, Evidence No. 1-1, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

For the following reasons, the part of the disposition of this case ordering the return and collection of the bounty and the additional collection therefor paid to the persons subject to Nos. 1 and 2 of the above table among the disposition of this case and the persons subject to the above table Nos. 5 through 12 as a restriction on payment under the above table is unlawful.

(1) The date when the above Nos. 1, 2 C and D applied for job seeking to the employment security office, etc. is April 20, 2005, July 21, 2006, respectively. The date when the Plaintiff actually employed C and D is November 21, 2005, and March 21, 2007, respectively. Thus, the Plaintiff satisfied the requirements for receiving the new employment promotion subsidy for C and D in accordance with the Employment Insurance Act that was enforced at the time of employment of C and D. Accordingly, the Plaintiff did not receive or intend to receive the subsidy by unlawful means with respect to C and D.

(2) Since the Plaintiff did not receive or want to receive the subsidy by unlawful means as referred to in the above paragraph (1), the period for receiving the application for the subsidy to those persons listed in the above table 1 and 2 cannot be used as the basis for restricting the payment of the subsidy under Article 56 (2) of the Enforcement Decree of the Employment Insurance Act, and the period for restricting the payment to the Plaintiff shall proceed from February 18, 2009. Therefore, since the Plaintiff received the subsidy to those listed in the above table 5 to 12 before the above point, it was erroneous for the Defendant to order the return thereof.

(b) Related statutes;

The Minister of Labor under Article 35 of the Employment Insurance Act (amended by Act No. 9792, Oct. 9, 2009) may restrict support or order a person who has received or intends to receive support for employment security activities under this Chapter by fraud or other improper means, to return the amount of support received by fraud or other improper means, as prescribed by Presidential Decree.

(2) If the Minister of Labor orders a return pursuant to paragraph (1), he/she may additionally collect an amount not exceeding five times the amount received by fraud or other improper means in accordance with the criteria prescribed by Ordinance of the Ministry of Labor.

former Employment Insurance Act (amended by Act No. 8429 of May 11, 2007)

Article 18 (Support for Promotion of Employment of the Aged)

The Minister of Labor may, under the conditions as prescribed by the Presidential Decree, provide necessary assistance to the relevant employers or employers who employ the aged, etc. newly or take other necessary measures for their employment stability, in order to promote the employment of the aged, etc. who have special difficulty in finding the employment under the ordinary conditions of the labor market (hereafter in this Article, referred to as the “aged, etc.”), or to workers falling under the employment stabilization measures

Article 26-5 (Restriction, etc. on Support due to Illegal Acts)

(1) The Minister of Labor may order a person who has received, or intends to receive, support for employment security activities under this Chapter by fraud or other improper means to restrict such support or to return already supported support under the conditions as prescribed by the Presidential Decree.

(2) When the Minister of Labor orders a return pursuant to the provisions of paragraph (1), he may additionally collect an amount not exceeding the amount equivalent to the amount received by the fraud or other improper means in accordance with the standards prescribed by the Ordinance of the Ministry of Labor

Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 21928, Dec. 30, 2009) Article 56 (Restriction on Payment of Subsidies, etc. for Illegal Acts)

(1) In accordance with Article 35 (1) of the Act, the Minister of Labor shall not pay any person who has received or intends to receive any of the following subsidies, incentives, or expenses for workplace skill development training by fraud or other improper means, the remainder of such subsidies, incentives, or subsidies, incentives, or expenses for workplace skill development training that he/she intends to receive, and the Minister shall order the refund of subsidies, incentives, or

(2) A person who has received, or intends to receive, subsidies, incentives, or vocational skills development training expenses referred to in the subparagraphs of paragraph (1) by fraud or other improper means shall not be paid subsidies, incentives, or vocational skills development training expenses for one year from the date he/she has received, or has applied for, subsidies, incentives, or vocational skills development training expenses, and the Minister of Labor shall order him/her to refund subsidies, incentives, or vocational skills development training expenses paid during

Article 22-2 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 20036 of April 27, 2007) (New Employment Promotion Subsidy)

(1) The Minister of Labor shall, pursuant to the provision of Article 18 of the Act, employ a person in a vocational condition exceeding the living period for each person prescribed in the attached Table 1, counting from the date when the business owner applied for a job to an employment security office or any other institution prescribed by the Ordinance of the Ministry of Labor, as the insured (excluding the workers prescribed by the Ordinance of the Ministry of Labor, such as short-term workers, etc.), and shall pay a new employment promotion subsidy if the newly employed worker is employed by the business owner who is related to the business concerned before the last day of the employment (including the business owner, such as the business owner who merges with or takes over the business before the last day of the employment).

Article 35-4 (Restriction on Payment of Subsidies, etc. Due to Dishonest Acts)

(1) In accordance with Article 26-5(1) of the Act, the Minister of Labor shall not pay the remaining subsidies, incentives, or costs of workplace skill development training for a person who intends to receive or receive the following subsidies, incentives, or costs of workplace skill development training by fraud or other improper means, and shall order the person to return the remaining costs of workplace skill development training (excluding each subparagraph).

(2) The Minister of Labor shall not, pursuant to Article 26-5 (1) of the Act, pay subsidies, incentives, or costs of workplace skill development training for one year from the date on which he/she received or attempted to receive subsidies, incentives, or costs of workplace skill development training referred to in the subparagraphs of paragraph (1) by fraud or other improper means, and shall order the Minister of Labor to refund the subsidies, incentives, or costs of workplace skill development training paid during the period

[Attachment 1] The period of unemployment for each person subject to new employment promotion subsidy (related to Article 22-2(1)

A person shall be appointed.

(c) Fact of recognition;

(1) On April 20, 2005, C applied for job seeking on the Internet job seeking registration site, which was unemployed, but applied for job seeking again on October 28, 2005. From November 20, 2005, C began to receive monthly pay from the Plaintiff’s office from November 20, 2005.

(2) On July 29, 2005, where Qru was unemployed, D applied for a job seeking to the Seoul General Employment Support Center, and thereafter thereafter, D began to receive vocational training at RA from September 22, 2006. From March 21, 2007, D began to receive monthly pay from the Plaintiff’s office.

(3) Around February 22, 2006, the Plaintiff determined each annual salary, working hours, recess hours, etc. between C and D on April 22, 2007. Upon entering into an employment contract that is not otherwise stipulated, the Plaintiff reported each employment insurance as of February 22, 2006 for C and D on April 22, 2007. Accordingly, C and D acquired the eligibility for each employment insurance policyholder on April 22, 2007.

(4) The Plaintiff filed an application with the Defendant for a job seeking more than three months as described in the above paragraph (1), and more than six months after D applied for a job seeking as described in the above paragraph (2). However, on the ground that D was newly employed on February 22, 2006 and April 22, 2007 and employed on April 22, 2007, the Plaintiff filed an application for the payment of each new employment promotion subsidy (hereinafter referred to as “new subsidy”) with C, accompanied by the employment contract, wage payment ledger, etc. entered as of February 22, 2006, and D as of April 22, 2007.

(5) On May 4, 2006, the Plaintiff submitted to the Defendant: (a) around February 22, 2006, the date of new employment of C, “C,” which was prepared by the Plaintiff, to the effect that “A, had a new worker of C, worked for an internship, management work, part-time, etc. from that date, and did not apply for the grant of incentives after having registered job seeking. As of the above new employment date, “I do not have a worker reduction by employment adjustment during a period between three and six months after that date; (b) on February 22, 2006; (c) the date of the first application for job seeking was 205,000; and (d) on August 16, 2007, the date of the first application for job seeking was 0 to 200 days before the date of new employment; and (d) the date of the second application for the grant was 20 days after the date of employment adjustment, which was written by D 20 days before that date.

(6) Based on the above application form for the payment of incentives, written confirmation, and interview survey table, the Defendant confirmed whether the Plaintiff satisfies the requirements for the payment of new incentives under Article 18 of the former Act, Article 22-2(1) [Attachment 1] 5, and 8 of the former Enforcement Decree of the Act, and paid each new incentive to D from May 4, 2006 to March 15, 2007 to September 21, 2007, and from April 15, 2008.

(7) The Defendant submitted a false statement of the new employment date as of February 22, 2006, and April 22, 2007, even though the actual new employment date C and D was around November 20, 2005, and March 21, 2007, and submitted a false statement of the new employment date to the Plaintiff, and received or received the incentives by unlawful means by applying for the payment of incentives along with the wage payment ledger, etc. Accordingly, from May 4, 2006, considering that the Plaintiff’s first receipt of the incentives to C from around May 4, 2006, the period of restriction on payment of the incentives to the Plaintiff, the Defendant ordered the Plaintiff to return and additionally collect the incentives, etc. that the Plaintiff received by the Plaintiff as to those persons subject to the No. 1, 2, 5, and 12 of the above table.

[Reasons for Recognition] The aforementioned evidence, Eul evidence Nos. 5 and 6-1, 2 and 3-3, and the purport of the whole pleadings

D. Determination

(1) Determination as to the Plaintiff’s assertion as stated in A. (1)

(A) Article 26-5 (1) and (2) of the former Act provides that the Minister of Labor shall order a person who has received or intended to receive a new subsidy, etc. by fraud or other improper means to return the subsidy, etc. which has already been paid and the amount equivalent to or less than the amount that has already been paid shall be collected. In this case, we examine whether the Plaintiff’s act of receiving a new subsidy of this case by stating the new employment date of C and D in a fraudulent

(B) According to Article 18 of the former Act, Articles 22-2(1), 35-4(1) [Attachment Table 1] 5 and 8 of the former Enforcement Decree of the former Act, where a person under 29 years of age has been unemployed in excess of 6 months from the date on which he/she applied for job-seeking to an employment security office, etc., and where a business owner employs the above person as an insured person of employment insurance, he/she shall pay a new subsidy to the relevant business owner only if he/she does not leave his/her job through employment adjustment from March before and after the relevant employment. Since it is practically impossible for the State to confirm and control all economic activities of each person, it is necessary for a government agency to officially confirm that the applicant for job-seeking was unemployed at the time of the date of the application for job-seeking, but it is necessary to officially confirm that the applicant for job-seeking for a certain period after the application for job-seeking. The purpose of this is to enable the State to provide financial support to the employment insurance fund for that person to promote the employment of the worker.

Therefore, the "new date of employment" of a worker who is subject to a new subsidy under the relevant provisions is the most important data in determining whether the requirements for payment of a new subsidy to the worker are met, such as whether the period of unemployment prescribed by the relevant worker has expired from the date of applying for a job seeking, whether the employer has not retired from employment through an adjustment in employment between March and June of the relevant worker, and whether the employer has not retired from employment through an adjustment in employment from the relevant worker. Therefore, the case where the payment of a new subsidy is received or intended to receive a new subsidy by means of falsely stating, preparing, and submitting a new employment date in an application for payment of a new subsidy, labor contract, wage ledger, other benefits payment documents, various certificates and confirmation documents, etc., constitutes a case where a new subsidy is received or intended to receive

(C) According to the above facts, it is apparent that the Plaintiff received or intended to receive a new subsidy by falsely stating the application for a new subsidy and the written application for a labor contract, the wage payment ledger, etc. as being later than the actual employment date of CDs in the “new employment date.” Thus, barring special circumstances, this constitutes a case where the Plaintiff received or attempted to receive a new subsidy by false or other unlawful means” under the aforementioned relevant provisions.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Determination as to the Plaintiff’s assertion as stated in paragraph (1)(2)

According to Article 26-5(1) of the Act and Article 35-4(2) of the Enforcement Decree of the Act, with respect to a person who has received or intended to receive a new subsidy by fraud or other improper means, a bounty shall not be paid for one year from the date on which he/she received or intended to receive the subsidy, and with respect to the subsidy, etc. paid during the period of restriction on payment, a return of the subsidy, etc. shall be ordered. As seen earlier, the Plaintiff received or received a new subsidy for C, D, F, or G by improper means. As such, the Plaintiff may not receive a bounty from March 28, 2006, the date on which the application for a new subsidy for G was filed to him/her from March 28, 2006, to August 11, 2010, which is

Therefore, the plaintiff's new subsidy that the plaintiff received for the persons subject to the above table 5 to 12 during the period of restriction on the payment of the above subsidy should be returned. Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case seeking revocation on the ground that the disposition of this case is illegal is dismissed as it is without merit.

The presiding judge, deputy judge and assistant judge

Judges Jin-law

Judges Choi Young-hoon