(영문) 인천지방법원 2014.4.10. 선고 2013구합10520 판결

A. On January 10, 201, the Plaintiff: (a) obtained an application for recognition of eligibility for employment insurance benefits from the Plaintiff on February 24, 2011, on the grounds that he/she retired from employment from office in the Doyang-dong Construction Business Co., Ltd., a company specializing in the construction business of Madun apartment in the East-gu, Yangyang-gu, for the payment of KRW 180 days for the fixed benefit payment days, KRW 31,363 for the Defendant; and (b) received KRW 1,03,630 for job-seeking benefits from March 3, 201 to April 22, 201.

B. On April 23, 2011, the Plaintiff filed a claim for early re-employment allowance based on Article 64 of the Employment Insurance Act against the Defendant on November 23, 201, on the ground that the Plaintiff re-employmented to the Siwon Construction Co., Ltd. (hereinafter “instant company”) that is the subcontractor of the Incheon Songdo Joint Sewage Treatment Corporation (hereinafter “instant Corporation”). However, on December 29, 201, the Defendant issued a disposition on the payment of early re-employment allowance for the reason that the Plaintiff constitutes a daily worker whose employment is unstable (hereinafter “instant disposition”).

C. The Plaintiff filed a request to revoke the instant disposition against an employment insurance examiner on October 22, 2012, but was dismissed on October 22, 2012, and the Employment Insurance Review Committee filed a request for reexamination, but was dismissed on February 8, 2013.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3 (including the relevant branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

Pursuant to Article 64(1) of the Employment Insurance Act and Article 84(1) of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 25022, Dec. 24, 2013; hereinafter “Enforcement Decree of the Employment Insurance Act”), the Plaintiff’s early re-employment allowance immediately is entitled to the payment of early re-employment allowance, so long as the Plaintiff had worked for at least six months at the construction site of the instant case that was re-employed, the instant disposition that the Plaintiff refused payment on the ground that the Plaintiff was a daily employee is unlawful.

2) The defendant's assertion

The Defendant issued the instant measure in accordance with the guidelines for the payment and abolition of early re-employment allowances for construction daily workers (the Employment Support Unemployment Benefits and January 21, 2011; hereinafter referred to as the “instant guidelines”). The instant guidelines are legitimate legal interpretation that conforms to the relevant laws and regulations, such as Article 64(1) of the Employment Insurance Act and Article 84(1) of the Enforcement Decree of the Employment Insurance Act, and thus, cannot be deemed as a "re-employment in a stable job stipulated in the Employment Insurance Act for daily workers, such as the Plaintiff, in accordance with the above guidelines."

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

A) On April 22, 2011, the contract term is not fixed in the written labor contract concluded with the instant company B. The contract term is not fixed in the instant construction site only for the daily workers (a contract for a permanent worker at the head office). In this case, the term of work is specified in general, and the period is renewed in consideration of the manpower input according to the type of work, and the time the work is terminated at the time of the completion of the pertinent work shall be specified as the contract term.

B) The Plaintiff worked from April 23, 2011 to December 3, 2011 at the instant construction site. The number of working days was 4 days on April 201, 201, 10 days on May 201, 201, 17 days on June 201, 15 days on July 201, 201, and 15 days on August 24, 201 on October 201, 201.

C) The instant company paid only daily allowances except for the number of absence from office to the Plaintiff, and did not impose sanctions against absence from office, and the Plaintiff’s report on the qualification of the insured of employment insurance to the Defendant was substituted by the Plaintiff’s report on the confirmation of the details of daily work.

D) On January 21, 201, the Ministry of Employment and Labor established the instant guidelines, which are administrative interpretation. According to the above guidelines, the definition of daily employed workers under the Employment Insurance Act is defined as "the employed worker for a period of less than one month", and considering the unstable employment relationship as a daily unit for a construction daily employed worker, there is no early re-employment allowance for a construction daily employed worker who reported the confirmation of the contents of employment as a matter of principle. However, if a construction daily employed worker has been employed for more than one month, the payment of early re-employment allowance should be reviewed if he/she has been employed for more than six months.

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 4, 5, Eul evidence Nos. 1 through 5, and the purport of the whole pleadings

2) Determination

A) Article 64(1) of the Employment Insurance Act provides, “The early re-employment allowance shall be paid to an eligible recipient who re-employments in a stable occupation or engages in a for-profit business, if the eligible recipient satisfies the criteria prescribed by Presidential Decree.” Accordingly, Article 84(1) of the Enforcement Decree of the Employment Insurance Act provides, “Where an eligible recipient re-employments in a stable occupation under Article 64(1) of the same Act” provides, “If an eligible recipient re-employments from a stable occupation after the waiting period under Article 49 of the same Act ends, the eligible recipient remains for at least 30 days, and is re-employed for at least six consecutive months, as of the day immediately preceding

As can be seen, the purport of the Employment Insurance Act’s payment of early re-employment allowance is to minimize the period of job-seeking and to encourage stable re-employment by paying a certain amount of money equivalent to the unpaid part of the amount of job-seeking benefits, regardless of the form of job-seeking benefits, where a beneficiary eligible for early re-employment benefits enables a stable re-employment of job-seeking benefits prior to receiving all job-seeking benefits (see Supreme Court Decision 2009Du19892, Dec. 8, 201). Article 84(1) of the Enforcement Decree of the Employment Insurance Act provides for the payment standards for early re-employment benefits by presenting objective and concrete methods and details of verifying the authenticity and stability of re-employment.

On the other hand, examining whether the guidelines of this case applied by the defendant as the basis of the disposition of this case can be the legal basis of the disposition of this case, the above guidelines are merely an administrative interpretation that set forth by a superior administrative agency the business process guidelines or the standards for the interpretation and application of statutes with respect to subordinate administrative agencies, and it is not delegated with the provision of the requirements, etc. for disposition

Therefore, whether the instant disposition satisfies the requirements should be determined based on the requirements of the instant provision, not on the foregoing guidelines.

B) In light of the above legal principles, comprehensively considering the facts acknowledged as above and the purport of the argument as seen earlier, ① there is no provision that the daily employed worker is excluded from the payment of early re-employment allowance under the Employment Insurance Act and the Enforcement Decree of the Employment Insurance Act, ② Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act specifies “the case of re-employment in a stable occupation for not less than 6 months” as delegated under Article 64(1) of the Employment Insurance Act, and if the recipient worked at the place of business where he was re-employed for not less than 6 months, it is reasonable to interpret that the case constitutes a stable reemployment. ③ The Plaintiff’s employment period employed by the company of this case is more than 6 months, and otherwise does not constitute grounds for exclusion from the payment of early re-employment allowance under the proviso of Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act and Article 108 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of Ministry of Employment and Labor, Dec. 30, 2013).

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.