(영문) 서울행정법원 2010.9.9. 선고 2010구합9785 판결

On January 26, 2010, the Defendant’s order to return the new employment promotion subsidy of KRW 7,160,000, and the additional collection of KRW 35,800,000, each disposition against the Plaintiff shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is a company established on September 7, 200 for the purpose of providing consultation services for standard certification. The Defendant is the head of a local labor administrative agency that conducts employment security services, such as job placement, vocational guidance, etc., and the Seoul Western District Office has a Seoul Western Employment Support Center as an affiliated agency.

B. On December 8, 2008, the Plaintiff newly employed B, who was unemployed for more than three months of age, and applied for the payment of new employment promotion subsidy on the ground that C was newly employed on the same ground as that of January 28, 2009, and the Defendant paid a total of KRW 7,160,000 to the Plaintiff. Specific details are as follows.

A person shall be appointed.

C. On January 26, 2010, the Defendant issued the instant disposition additional to the Plaintiff pursuant to Article 35 of the Employment Insurance Act (hereinafter referred to as the “Act”), Article 56 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter referred to as the “Enforcement Decree of the Act”), Article 78 of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Labor No. 338, Feb. 9, 2010; hereinafter referred to as the “Enforcement Rule of the Employment Insurance Act”), on the ground that the Plaintiff did not employ B and C through the referral of the employment security office (hereinafter referred to as the “worknet 1”), on the ground that the Plaintiff had employed them through a formal arrangement (designated good offices and post-mediation) for the purpose of receiving the incentives, and to collect KRW 35,800,000,000 already paid for the Plaintiff.

[Ground for Recognition: Facts without dispute, Gap evidence 5-1 and 2, purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff met B around September 6, 2008 and C around October 21, 2008 with a plan to select technical or consulting staff members among those eligible for support for employment security activities of the Korea Labor Agency due to aggravation of management conditions. At the time, B and C notified that job seeking should be registered in the Worknet because they did not register job on the Worknet, and accordingly, B and C registered job seeking with the Worknet using a computer for customers kept in the Plaintiff’s office. Thus, the instant disposition was unlawful on the premise that the Plaintiff received subsidies by fraud or other improper means.

(2) Even if there are grounds for the instant disposition, the Plaintiff, a small business entity, due to the instant disposition that additionally collects five times the amount of the incentives in addition to the incentives that the Plaintiff received, will be at the risk of dishonor and closure. The instant disposition also goes against the principle of proportionality too much even in light of its public interest purpose.

(b) Related statutes;

It is as shown in the attached Form.

(1) The Plaintiff met B around September 6, 2008 and C around October 21, 2008 with a plan to select a staff in charge of technical affairs or consulting among those eligible for support for employment security activities of the Korea Labor Agency due to aggravation of management conditions. At the time, B and C did not register job seeking with the Worknet.

(2) On November 5, 2009, the Minister of Labor requested the Anti-Corruption and Civil Rights Commission to investigate whether the incentives were properly paid to the workplace including the Plaintiff on the basis of the current status of the job offering and job seeking IP address on the Worknet, and requested the Seoul Western General Employment Support Center, etc. to investigate the facts and submit the results thereof.

(3) Upon the above request, the Seoul Western Employment Support Center confirmed that the number of IP addresses requested for certification and the IP addresses requested for certification are similar at the time of the Plaintiff’s request for job offers. The detailed details are as follows.

A person shall be appointed.

(4) On November 27, 2009, employees of the Seoul Western Employment Support Center (hereinafter “Seoul Western Employment Support Center”) examined the following reasons: (a) the IP address was similar to that of the Plaintiff’s representative director; (b) the actual route in which the Plaintiff’s IP address was employed; and (c) the payment of incentives was appropriate. At the time of the investigation, the Plaintiff entered the Plaintiff’s office and entered the Plaintiff’s office; (b) the Plaintiff was registered in the Worknet using the Plaintiff’s computer located in the Plaintiff’s office; (c) the Plaintiff interviewed B and C through the arrangement of the Seoul Western Employment Support Center; and (d) the Plaintiff’s written recommendation by the Plaintiff’s employees was submitted as interview documents and responded that he was employed.

I perused the statement stating the above statement, but it rejected the signature and seal.

(5) B and C responded to “the Worknet good offices” regarding the method of identifying the Defendant’s employment upon the Plaintiff’s application for the incentives.

(6) After the registration of job offers on November 2008, 2008, 10 persons, including B and C, wishing to work for the Plaintiff, and requested mediation. However, only B and C were employed, and the remaining eight persons were not employed.

(7) On January 11, 2010, the Plaintiff received prior notice of the instant disposition from the Defendant, and around January 1, 201, submitted a written opinion that: (a) the Plaintiff was not well aware of B and C before receiving referral from the Seoul Western Integrated Employment Support Center; (b) there was no formal application for job-seeking (ex post facto good); and (c) the Plaintiff’s filing of job-seeking registration on the Worknet with the computers located in the Plaintiff’s office was due to mistake that the Plaintiff’s personnel visited B and C, who visited the Plaintiff’s office, was derived from the process of guiding the Plaintiff’s employment application

(8) On the other hand, job seekers registered job seeking in the Worknet and automatically cannot receive related services (mediations, etc.) through the Worknet as the validity period expires after three months elapse. C used the Plaintiff’s computer located in the Plaintiff’s office when filing the first job seeking registration in the Worknet on October 1, 2008, and re-registered job seeking at the same place on January 5, 2009 when three months have elapsed since the first job seeking registration date.

[Ground of Recognition: Facts without dispute, Gap evidence 1, Gap evidence 4, Eul evidence 5-1, 2, Eul evidence 1, Eul evidence 2-1 through 3, Eul evidence 4-1 through 3, Eul evidence 4-1 through 3, and Eul evidence 5-7, the purport of the whole pleadings]

D. Determination

(1) Under the ordinary conditions of the labor market, an incentive is paid to an employer who takes measures necessary for employment security of the unemployed to prevent structural deterioration of unemployment by facilitating employment of workers who are particularly difficult to find a job, and to facilitate their entry into the labor market. According to Article 23 of the Act and Article 26(1) and attached Table 1 of the Enforcement Decree of the Act, according to Article 26(1) and subparagraph 5 of the attached Table 5 of the Act, an employer shall employ a person in a state of unemployment exceeding the unemployment period of three months (29 years or less) after calculating the date of the registration of job-seeking by the employment security office or any other institution prescribed by the Ordinance of the Ministry of Labor, etc., as the insured through the referral by the employment security office, etc., and shall not dismiss the employee through employment adjustment during the three months prior to the employment, from the date of the employment security office to the 12 months subsequent to the employment. As seen above, the provision of a "re-employment through such referral by the employment security office, etc." as one of the requirement for granting incentives is to prevent

B. According to the above facts, even though the plaintiff was already decided to employ B and C upon the recommendation of the plaintiff's employee before receiving the referral from the Seoul Western Employment Support Center, it is reasonable to view that B and C had the defendant, who had not been able to receive the referral due to the expiration of the term of validity of the registration of job seeking with the purpose of receiving the grant from the defendant, registered job seeking to use the plaintiff's computer located in the plaintiff's office, and then newly employed them through the form of the arrangement of the Seoul Western Employment Support Center. Thus, the plaintiff is deemed to have received the grant of the grant by fraud or other improper means. Accordingly, the plaintiff's assertion disputing this is without merit.

(2) Whether the instant disposition deviates from or abused discretionary power

Article 35 of the Act provides that, as prescribed by Presidential Decree, the Minister of Labor may order a person who has received or intends to receive support from a person who has received or has received support for employment security and vocational skills development programs by fraud or other improper means, or a person who has received or has received such support by fraud or other improper means, to return the amount of support received by such person, and in addition, Article 56 (1) of the Enforcement Decree of the Act provides that the person may collect an amount not exceeding five times the amount received by fraud or other improper means in accordance with the guidelines prescribed by Ordinance of the Ministry of Labor (Article 1 and (2) and Article 35 (1) of the Act provides that the person shall order the return of the subsidy under Article 26 of the Enforcement Decree of the Act paid by fraud or other improper means pursuant to Article 35 (2) of the Act. Meanwhile, Article 78 (1) 3 of the Enforcement Rule of the Act provides that the person who received or intends to receive the subsidy by fraud or other improper means for the last five years prior to the date of detection of unlawful acts shall be determined five times or five times of application.

The part of the order of return among the disposition of this case

As long as the Plaintiff received a subsidy by fraud or other improper means, the disposition that the Defendant ordered the Plaintiff to return the subsidy received pursuant to the relevant Acts and subordinate statutes shall not be deemed unlawful since it exceeded or abused the discretionary power.

Furthermore, the Additional Collection Disposition of the instant disposition

According to the above relevant Acts and subordinate statutes, in addition to ordering a person who received a subsidy by fraud or other improper means, the Minister of Labor may additionally collect double, three, five times, and five times the amount he/she received by fraud or other improper means in accordance with the number of times he/she requested to receive or intend to receive the subsidy by fraud or other improper means during the last five years prior to the date of detection of unlawful acts. As such, whether to collect additional collection is subject to the discretion of an administrative agency.

However, the interpretation of Article 78(1)1 through 3 of the Enforcement Rule of the Act in harmony with Article 35(2) of the Act shall not include the frequency of fraudulent acts (illegal receipt or fraudulent request) subject to detection in the case of an application filed by a false or other unlawful means for the last five years prior to the date on which the illegal act is discovered. This is because the following problems arise if such interpretation is not made. In other words, Article 78(1)1 of the Enforcement Rule of the Act does not present “where there is no number of applications filed by a false or other unlawful means during the last five years prior to the date on which the illegal act is discovered.” In addition, Article 78(1)2 of the Enforcement Rule of the Act provides that three times the amount of incentives received by a false or other unlawful means shall be additionally collected even in cases where the number of applications filed for incentives by a false or other unlawful means is one time, and Article 78(1)2 of the Enforcement Rule of the Act provides that the Defendant’s application for the additional collection of grants by a false or other unlawful means cannot be applied under Article 78(1).

However, the Defendant, on or after April 1, 2009, rendered a disposition to additionally collect five times the amount of incentives paid to the Plaintiff pursuant to Article 78(1)3 of the Enforcement Rule of the Act, including the frequency of unlawful acts being discovered, on the ground that the Plaintiff received incentives by false or other unlawful means twice (the date of July 10, 2009 and October 19, 2009) after the date on which the Plaintiff was discovered. This does not seem to have been the circumstances that the Plaintiff should additionally collect five times the amount of incentives for the Plaintiff, because the Plaintiff was subject to excessive sanctions on the part of the Plaintiff pursuant to the interpretation of the relevant relevant statutes, and that the Plaintiff was subject to abuse of discretionary power or was unlawful, and otherwise, the Plaintiff did not appear to have received five times the incentives from the Minister of Labor or to receive the amended order for five years prior to the discovery of unlawful acts (the number of times the phrase “the Plaintiff applied for payment or other unlawful means” in order to clarify its interpretation.

(3) Sub-determination

Since the part of the Defendant’s order of return among the disposition of this case is lawful, the Plaintiff’s assertion seeking revocation is without merit, and the part of the disposition of additional collection is unlawful.

3. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as they are without merit.

Judges

The judge of the presiding judge shall be Jin only

Judges Ginsansan

Judges 00

Note tin

1) The Ministry of Labor provides various kinds of employment information, such as job offers, job offers, job information, employment trends, and other services such as employment information and employment applications, and each employment security office, etc. establishes a worknet, which is an employment evasion system, to enhance the efficiency of the work by electronically processing employment support affairs. The employment support center under the defendant-affiliated manages employment information, job offers, job offers, job placements, job seeking assistance, self-support assistance, job guidance, and vocational guidance.

2) Job seekers have arranged through the Worknet: Job seekers have prepared a resume, a letter of self-introduction, etc. and joined the Worknet as a member; and after obtaining certification through consultation with the employees of the Employment Support Center, "employment information" column inspects the list of job offerers through the job offerers, selects the job offerers who want to be employed by them, and read the employment information of the job offerers, and where they wish to be employed by the job offerers, the job offerers' request for the "request for placement" on the right side side of the screen will proceed with the procedure for employment. When job seekers contact "request for placement", the job seekers contact with the relevant job offerers to inform the job offerer of the job seeker's personal history, confirm the job seeker's intention of mediation progress, and adjust the employment conditions of both parties, date and time of interview, etc.

Attached Form

A person shall be appointed.

심급 사건

서울행정법원 2010.9.9.선고 2010구합9785

-서울고등법원 2011.5.3.선고 2010누32633

참조조문

-고용보험법 제35조

-고용보험법 시행규칙 제78조

-고용보험법 시행령 제56조

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