[Defendant-Appellee] Plaintiff (Law Firm Professor, Attorney Lee Jong-soo et al.)

Minister of Employment and Labor

August 21, 2020

Seoul Administrative Court Decision 2019Guhap68947 decided February 13, 2020

1. The defendant's appeal is dismissed.

2. Costs of appeal are borne by the Defendant.

1. Purport of claim

On October 30, 2018, the defendant revoked one-month suspension disposition against the plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reason why this Court shall state in this judgment is that Article 28(1) of the 5th written judgment of the first instance is "Article 28(1)", Article 28(1) of the 7th written judgment is "Article 28(1)", and Article 28(1) of the 12 of the 12th written judgment inside the 7th written box is "Article 28(1)", and Article 10(3) through 12 of the 12th written judgment is the same as the part of the first written judgment except where the 10th written judgment is used as follows. Thus, this Court shall accept it as is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

“1) Whether there is a ground for action”

A) Order of determination

The Defendant rendered the instant disposition based on Article 36(1) of the Employment Security Act on the premise that “the Plaintiff violated the code of practice under Article 28 subparag. 1 of the Enforcement Decree of the Employment Security Act” on the premise that “the name, name, and address of the job offerer stated in the job offer advertisement published by the Plaintiff is false.”

In this paper, I first examine the meaning of matters to be observed under Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act, along with the legislative purpose, contents and structure of the Employment Security Act, and then examine whether the Plaintiff violated the rules under Article 28 subparagraph 1 of the Enforcement Decree of the Employment Security Act.

B) Legislative purpose and provision system of the Employment Security Act

(1) Under the Employment Security Act, the purpose of the Employment Security Act is to promote the employment security of workers and contribute to the balanced development of the national economy by providing all workers with an opportunity to be employed in a job where they may develop and display their respective abilities and by supporting the smooth supply of and demand for the necessary labor force in each industry in cooperation with the government and the private sector (Article 1). Article 2-2 of the Employment Security Act defines “employment service providing vocational information such as job offering and job seeking information by means of computer communications, etc.” As a concept distinct from “job placement” (Article 2, 4, and 5). Article 3(1) of the Regulations on Handling Business of Reporting Business of Employment Information, which is the established rules of the Ministry of Employment and Labor, provides for the establishment of employment contracts by directly linking a specific job offerer and a job seeker, while employment information is distinguishable from both by providing employment information to many and unspecified potential job offerers and job seekers and job seekers so that job offers and job seekers voluntarily find job placement or job seeking.”

B. Article 25 of the Employment Security Act stipulates that the person who intends to engage in the business providing employment information shall report the matters to be observed by the person who intends to engage in the business providing employment information (Article 23); Article 25 provides that "in the event that the job offerer is a delinquent business owner in arrears with a list, such fact shall be published so that the job offerer may identify the job seeker (Article 1); "not to provide employment information short of the minimum wage (Article 2);" and "other matters prescribed by Presidential Decree (Article 3)" (Article 28 of the Enforcement Decree of the Employment Security Act upon delegation thereof shall be listed; and Article 28 of the Enforcement Decree of the Employment Security Act provides that "in the event that the job offerer does not indicate the job offerer's name, etc. or the job offerer's contact number is written, the job offerer's address or telephone number shall be stated in the advertisements of employment information media; Article 25 of the Enforcement Decree of the Employment Security Act shall prohibit the job offerer from providing employment information or his/her telephone number, etc. (Article 28 (3) through 4) of the Employment Security Act).

Meanwhile, Articles 18 through 22 of the Employment Security Act stipulate matters to be reported or registered by a person who intends to engage in free or fee-charging job placement services, matters to be observed and prohibited, etc., and Article 19(6)3 of the Enforcement Decree of the Employment Security Act delegates matters to the Presidential Decree. Accordingly, Article 25 Subparag. 3 of the Enforcement Decree of the Employment Security Act stipulates that “where a job offerer’s business is a business requiring permission, report, registration, etc. of an administrative agency, matters to be observed, matters to be observed shall be verified,” and Article 18(2) and [Attachment Table 1-2] of the Enforcement Rule of the Employment Security Act upon delegation of subparagraph 8 of the same Article provides that “the identity of the job offerer(s) and place of business, telephone number, working conditions, etc. of the job offerer(s) shall be verified, and the job offerer(s) shall not include any false information about job offer advertisements or any false information about job offer advertisements (Article 3 of the Enforcement Decree).”

A person who makes a false job offer advertisement or presents false job offer conditions in violation of Article 34 of the Employment Security Act (Article 47 subparagraph 6 of the Employment Security Act) is subject to criminal punishment (Article 47 of the Employment Security Act). However, if a job offerer's business requires permission, report, registration, etc. of an administrative agency, the identity and location of a job offerer's place of business, telephone number, and the job offerer's agent's application for job offer, there is no separate provision on the duty to verify the identity, etc., and the job offerer's business is excluded from the application of the prohibition provision on false job offer advertisements (Article 34).

C) Interpretation of the provision of the Enforcement Decree of the instant case

(1) Considering the legislative purpose of the Employment Security Act as seen earlier and the language and text of the provision on matters to be observed by those providing employment information, the purpose of the provision of the Enforcement Decree of the instant case prohibiting the posting of job offer advertisements in which the identity of a job offerer is uncertain is to prevent the job offerer from providing information by blocking illegal job offer by a person without name, thereby ensuring the legality of a job offer subject to information provision, and ensure the job offerer’s identity and job information accurately, thereby ensuring the job offerer’s minimum job seeking stability.

The instant provision provides that job offer advertisements shall not be published in which job offerers do not indicate “job offer advertisements whose identity is uncertain” and where the job offerer’s name, etc. is not indicated as the type of job offer advertisements prohibited to be published, or where the contact information of the job offerer is indicated as a letter box, etc. In this case, the job offerer’s name, name, and contact information is the minimum element for job offerers to identify the job offerer’s identity. On the premise that job offerers’ name, name, and contact information are the job offerers’ name and name, or they do not indicate the job offerer’s name or telephone number to be directly contacted with the job offerers’ name and contact information, thereby making it impossible for job offerers to identify the job offerers’ identity.

Meanwhile, in case of violation of the provisions of the Enforcement Decree of the instant case, business suspension, etc. may be imposed on those providing employment information. The administrative laws and regulations, which serve as the basis for such aggressive administrative dispositions, must be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted or analogically interpreted in the direction unfavorable to the other party to the administrative disposition. Even if the teleological interpretation that takes into account the legislative intent and purpose, etc. is not entirely excluded, such interpretation does not deviate from the ordinary meaning of the language and text (see, e.g., Supreme Court Decisions 2007Du13791, 13807, Feb. 28, 2008; 201Du388, Dec. 12, 2013).

However, the text of the Enforcement Decree of this case does not state the name of the job offerer as the type of job offering advertisements prohibited as seen earlier, or where the contact information of the job offerer is indicated as a letter box, etc., the contact information of the job offerer is limited only, and in other cases, it is not clearly stated that the name of the job offerer, name, and contact information of the job offerer should conform to the truth.

In addition, the provision system of the Employment Security Act, i.e., the Employment Security Act clearly separates the job placement service from the job placement service, and unlike the job placement service, in the case of the job offerer, there is no provision on the duty to verify the identity of the job offerer in the case of the job offerer, the location and telephone number of the job offerer, and the job placement agent in the case of the job placement application. In light of the fact that the job offerer is excluded from the job placement service subject to the prohibition provision such as false job placement advertisement, the Employment Security Act does not seem to be premised on the job offerer's duty to verify whether the job offerer's name, name, and contact information recorded

In light of the above, even if considering the legislative purpose of the Employment Security Act or the purport of the provision of the Enforcement Decree of this case, construing that the phrase “job offering advertisement in which the identity of the job offerer is uncertain” under the provision of the Enforcement Decree of this case includes “in which the name of the job offerer, name, and address of the job offerer is inconsistent with the truth” as a matter of course constitutes an interpretation beyond the ordinary meaning of the language and text, and thus, is difficult

Therefore, it is reasonable to view that job offer advertisements in which the identity of the job offerer is not clearly indicated as the job offerer's name, name, and contact number is not clearly indicated, and thus job offerer's information on the job offerer's identity is not verifiable. In light of the legislative purpose and regulatory structure of the Employment Security Act and the purport of the provision of the Enforcement Decree of this case, etc., if the job offerer's identity is confirmed at the time of the job offerer's entry, and if the job offerer's identity is verified at the time of the job offer advertisement, and the job offerer's name, name, and contact information is specified in detail after confirming the job offerer's identity at the time of the job offerer's entry, it is difficult for the job offerer to evaluate that the job offerer's name, name, and contact information stated in the job offer advertisement is not consistent with the truth.

D) Whether the Plaintiff violated the matters to be observed under the Enforcement Decree of this case

(1) As seen earlier, the business name of each job offer advertisement at issue in the instant case is as follows: (a) the specific trade name or business name in the column; (b) the address at which the lot number was specified in the column; and (c) the name of the job offerer or agent’s specific name in the column (Evidence 2); and (d) the telephone number of each job offer advertisement listed in Nos. 2 through 66-9360 + (iv) the number of each job offer advertisement listed in the column 1566-9360 + (v) the number of each job offer advertisement listed in the column 2 or 6 is indicated as the job offerer’s telephone number, which is a telephone connection program for preventing infringement of privacy while publishing the job offer advertisement; (b) the job offerer’s phone number, instead of his telephone number, was exposed to the temporary contact number of the four-party job offerer’s contact number granted by the system of the above “colfin service”; and (c) the job offerer’s phone number at which the job offerer’s contact number was entered as above 366.

Furthermore, according to the method of operation of the Plaintiff’s job offer advertising website on which each of the above advertisements is posted, in order for a job offerer to post an advertisement, it seems that the job offerer is required to join the membership and that he/she is the person in question by inputting his/her name, date of birth, gender, mobile phone information and certification number through a mobile phone communication provider in

In light of the aforementioned legal principles, since each job offering advertisement mentioned above clearly stated the job offerer's name, name, and contact information, and the job offerer's name, name, and contact information cannot be seen as being lost, even if the job offerer's name, name, and contact information stated in the above job offering advertisement do not fit the truth, it cannot be determined that the plaintiff violated the code of practice by inserting "job offering advertisement in which the identity of the job offerer is uncertain" as provided by the Enforcement Decree of the instant case.

Article 28 Item 6 of the Enforcement Decree of the Employment Security Act does not apply to the Plaintiff’s act of publishing each of the above job offer advertisements specified as the grounds for the disposition of this case, and there is no reason for the disposition of this case (the Defendant asserted that the Plaintiff violated Article 28 subparagraph 6 of the Enforcement Decree of the Employment Security Act through a reference document after the conclusion of the trial proceedings, but this cannot be deemed the same in the basic point of view as the grounds for the disposition of this case, since the ground for the disposition of this case cannot be seen as identical in the basic point of view.)

2. Conclusion

If so, the plaintiff's claim of this case shall be accepted on the ground of its reasoning. The judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jin-jin (Presiding Judge) and Lee Jin-hee