(영문) 서울고등법원 2012.2.16. 선고 2011누25151 판결

2. On March 12, 2010, the Defendant issued a return order of KRW 2,160,000 to the Plaintiff and the disposition of additional collection of KRW 4,320,000, all of which are issued by the Plaintiff shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On December 1, 2009, the Plaintiff applied for a new employment promotion subsidy corresponding to September 1 through November 2009, on the ground that the Plaintiff interviewed B, a long-term job seeker, to the Defendant on September 1, 2009, and was newly employed in the water datum, his/her workplace, from September 1 to November of the same year. The Plaintiff received a total of KRW 2160,000 won of the new employment promotion subsidy from the Defendant on December 17, 2009 (i.e., KRW 720,000 won per month).

B. On March 12, 2010, the Defendant: (a) received subsidies for new employment promotion from the Plaintiff without the help of an employment security office; and (b) applied for the payment of subsidies for new employment promotion to the Plaintiff; (c) Article 35 of the former Employment Insurance Act (amended by Act No. 1039, Jun. 4, 2010; hereinafter the same shall apply); (d) Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same shall apply); and (e) Article 78(1)2 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 201; hereinafter the same shall apply); and (e) additionally collected the amount of the subsidies for new employment promotion that were already paid to the Plaintiff pursuant to Article 38(1)2 of the former Enforcement Rule of the Employment Insurance Act from 2016 months to 20.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 2, evidence 3-1 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 20, 209, the plaintiff requested job seekers to arrange through the Worknet (Work-Net), which is the employment security information network operated by the defendant, but the job referral notice was delayed, but the job referral notice was to conduct an interview on August 24, 2009 and to be employed B. Since B re-reconcing employment intent after re-reconcing employment promotion notice from the employment security office on September 1, 2009, the plaintiff was employed on September 2, 2009, and again agreed on employment conditions after receiving the job referral notice from the employment security office, and the plaintiff did not know that B provided a job placement request again to the Worknet before September 1, 2009, and did not receive a new subsidy from the government, and thus, the plaintiff did not know that B did not receive a new subsidy and did not receive a new subsidy in an unlawful manner. Thus, the plaintiff did not know that B did not receive a new subsidy from the new government.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

Article 23 of the former Employment Insurance Act and Article 26 (1) of the Enforcement Decree of the same Act stipulate that the employment promotion scheme of the elderly, disabled, long-term job seeker, female, youth, etc. (hereinafter referred to as "persons belonging to the vulnerable class in employment") under the ordinary conditions of the labor market intends to promote employment of those belonging to the vulnerable class in employment by providing incentives to the business owner who employs them for a certain period of time. Article 26 (1) of the Enforcement Decree of the same Act provides that the business owner shall employ those belonging to the vulnerable class in employment by the referral of the employment security office, etc. as one of the requirements for receiving the new employment promotion incentive, and the "job placement" here means that the employment promotion scheme of those belonging to the vulnerable class in employment by arranging the relevant job offerer to employ job seekers, etc., may cause them to become job offerers, and that those belonging to the vulnerable class in employment can only be considered to have been provided by the employment security office in light of the social competitiveness of the labor market, and that the employment promotion scheme is more likely to be provided by such business owner's.

However, there may be cases where a business owner has the intent to immediately employ persons belonging to the vulnerable class in employment, regardless of whether or not to pay the new employment promotion subsidy, regardless of the business owner's qualifications and capabilities required by the business owner. Nevertheless, if the business owner received the new employment promotion subsidy through the intermediation, etc. of employment security offices, etc. formally with hiding such fact, it constitutes a case where the business owner received the new employment promotion subsidy by "any false or other unlawful means" under Article 35 of the former Employment Insurance Act. If an administrative agency takes unfavorable administrative disposition against the relevant business owner for such reason, such as restitution, disposition, etc., and files an appeal seeking cancellation of such disposition, the business owner bears the burden of proving that the business owner received the new employment promotion subsidy through the procedure of intermediation, etc. (see Supreme Court Decision 2010Du28373, Aug. 18, 2011).

On the other hand, sanctions against violations of administrative laws are sanctions against the objective facts of violation of administrative laws in order to achieve administrative purposes, even if the violator does not have intention or negligence, it may be imposed even if there is no intention or negligence. However, if there are special circumstances, such as where there is a justifiable reason not to mislead the violator of his/her duty, it may not be imposed (see, e.g., Supreme Court Decision 98Du5972, May 26, 2000).

2) Facts recognized

A) In order to seek a person who will work as a customer counselor from the C Water datum, the Plaintiff was requesting a job offer brokerage to the Worknet on August 20, 2009, the Plaintiff discovered B that requested a job placement brokerage on the Worknet on August 20, 2009, and requested that the job placement service. On the following day, if the job placement notice was not immediately made, B’s telephone number (the job placement through the ordinarynet is disclosed after the job placement notice to the person in charge, and the telephone number or personal history of the person requesting the job placement was disclosed after the job placement notice to the worker requesting the job placement, and it is not known that B’s telephone number, etc. was disclosed to the Worknet on any occasion at the time, interview B on the 24th of the same month, received education at the head office C for three days from the following day.

B) However, B requested a beauty artist to find out a job at the Worknet on the same day, and the head office was not educated on the 25th day following that day, and requested F and G as a beauty artist on the 27th day of the same month. On the 25th day of the same month, the Plaintiff requested the offer of job offers to H and 3 others on the 26th day of the request for the offer of job offers. On the 27th day of the request for the offer of job offers to Ha, the 27th day J and 1, and the 28th day of the request for the offer of job offers to Ha and 5 others on the 29th day of the same month, and the 2th day of the same year, which was found to be office, and the 2nd day of the next month, the Plaintiff arranged the employment contracts with the Plaintiff at the 108:56 day of the same month and provided the Plaintiff with the new employment promotion subsidy to the Plaintiff at the 50th day of the same month.

D) After December 1, 2009, B prepared ‘the matters of attention when handling the new employment promotion subsidy', ‘the confirmation of the business owner supporting the promotion of new employment promotion subsidy', and ‘the confirmation of the fact of new employment promotion subsidy' with the consent of the plaintiff and submitted them to the defendant with the signature and seal of the plaintiff, and applied for the payment of the new employment promotion subsidy while submitting them to the defendant. The confirmation letter of the above new employment promotion subsidy is written as follows: the employment route of the employment support center, interview date, September 1, 2009, and September 2, 2009.'

E) However, on December 17, 2009, the Plaintiff did not pay a new employment promotion subsidy to B on the ground that it was paid to the business owner himself/herself after deposit of the new employment promotion subsidy. B retired from the Plaintiff’s place of business on the 21st of the same month, and thereafter, on August 24, 2009, the employment was determined at the time of interview on August 24, 2009, upon receiving the letter of questions and answers related to the payment of the said subsidy from the Defendant on the 30th of the same month, and the Plaintiff was ordered from the Plaintiff on the end of August 2009 and received the letter of confirmation from the Plaintiff on September 1, 2009.

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 3 through 10, Eul evidence Nos. 3-3, Eul evidence Nos. 7 and 8, Eul evidence Nos. 3-4, part of Eul evidence Nos. 3-4, and witness B's testimony

3) Determination on the instant case

In light of the following circumstances acknowledged by the aforementioned facts and evidence, i.e., (i) the Plaintiff directly contacted B with B’s telephone number located in B at the latest, and decided on the employment of the Plaintiff. Even if it was recognized as having violated B’s new request for brokerage of B, it is reasonable to deem that the Plaintiff did not directly receive subsidies from the relevant employment security office, based on the fact that the Plaintiff was aware of the telephone number or history of the person who requested job placement through the Worknet, and that there was no conflict between B’s brokerage and separate employment. (ii) The Plaintiff did not directly agree with B’s employment and employed women on September 1, 2009, but did not participate in education to arrange B on August 25, 2009, and that the Plaintiff did not directly receive subsidies from the relevant employment security office, and that the Plaintiff did not directly receive subsidies from the relevant witness testimony during the period from the 20th day of the same month.

Therefore, the defendant's disposition of this case on different premise is illegal.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition after revoking the judgment of the court of first instance and cancelling the disposition of this case.