(영문) 서울행정법원 2010.9.16. 선고 2010구합24807 판결

On December 31, 2009, the Plaintiff retired from office in Gangseo-gu Seoul Metropolitan City, and applied for recognition of eligibility for job-seeking benefits to the Defendant on January 201, 2010. The Defendant recognized eligibility for job-seeking benefits and paid KRW 480,000 to the Plaintiff around that time.

B. The Plaintiff’s application for payment of early re-employment allowance

On February 3, 2010, the Plaintiff applied for the payment of early re-employment allowance to the Defendant on February 26, 2010 on the ground that he/she was appointed as a professional operator (representative) of Gangnam-gu Seoul Company C (hereinafter referred to as “non-party C”) located in Gangnam-gu Seoul.

C. The Defendant’s early re-employment allowance and site pay disposition (hereinafter “instant disposition”).

(1) Date of disposition: 2010, 12 April 2.

(2) Site pay grounds: The Plaintiff is a self-employed person for the acquisition of employment insurance, and the preparation activities for running the pertinent business during the period of job-seeking benefits are not recognized as unemployed due to reporting the re-employment activities, and thus, does not meet the payment criteria

(3) Basic Acts and subordinate statutes: Article 64(1) of the Employment Insurance Act and Article 84(1)2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22026, Feb. 8, 2010; hereinafter the same)

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff is an employee employed by Nonparty Company 1-one shareholder D, and thus meeting the criteria for the payment of early re-employment allowance under Article 84(1)1 of the Enforcement Decree of the Employment Insurance Act, but the Defendant rendered the instant disposition rejecting the payment of early re-employment allowance to the Plaintiff on the premise that the Plaintiff is a self-employed person.

(2) The Defendant’s employees may receive early re-employment allowances from the Plaintiff in consultation with the Plaintiff.

The instant disposition also goes against the principle of trust protection.

B. Relevant legislation

It is as shown in the attached Table related statutes.

(1) On February 3, 2010, the Plaintiff entered into an employment contract with a shareholder D who is one shareholder of the non-party company, and its main contents are as follows.

(A) From February 3, 2010 to December 31, 2010, the Plaintiff promised to perform the duties of representative director of the non-party company as a professional manager, and the non-party company and D shall ensure the Plaintiff’s performance of duties as representative director. The Plaintiff’s term of office may be extended under mutual agreement.

(B) The Plaintiff is responsible for the overall external business and management while holding office as the representative director of the non-party company and bears the responsibility therefor.

(C) Remuneration or retirement allowance for the plaintiff shall be determined by a resolution of the general meeting of shareholders as stipulated in the articles of incorporation of the non-party company.

(2) The non-party company was established on January 27, 2010, and the Plaintiff was registered as the representative director of the non-party company. In addition, on February 3, 2010, the Plaintiff completed the business registration of the non-party company as its representative, and on March 13, 2010, acquired the qualification for the employment insurance as its own business operator.

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

D. Determination

(1) Determination on the first argument

(A) Unless there are special circumstances, the representative director of a stock company has the authority to represent the company externally and perform the business of the company externally, and thus does not constitute an employee under the Employment Insurance Act. However, even if the representative director is registered as the representative director, his status as the representative director is merely a formal and nominal purpose, and is only without the internal business execution right of the company, and is executed in the name of the actual manager, who is based on the registration name, even in external business execution, and is also executed in the name of the decision-making owner. It does not constitute an employee under the Employment Insurance Act in case where he provides labor under the specific direction and supervision of the actual manager, and receives remuneration not based on business performance or work performance, but based on the nature

(B) In light of the above facts and the following circumstances revealed in the argument in this case, the Plaintiff cannot be deemed as the representative director of the non-party company as an employee under the Employment Insurance Act. Therefore, it is reasonable for the Plaintiff to continue to engage in a profit-making business for at least six months as prescribed by Article 84(1)2 of the Enforcement Decree of the Employment Insurance Act and to treat the Plaintiff as equivalent to those who engage in a profit-making business. However, as prescribed by the proviso of the above Article, the Plaintiff reported the preparatory activities for running the pertinent business as a re-employment during the period of job-seeking benefits and did not be recognized as unemployed

0 The plaintiff was registered as the representative director of the non-party company, completed the business registration as the representative of the non-party company, and acquired the insured status as a self-employed person.

0 In the employment contract prepared by the plaintiff and D when concluding the employment contract for representative director, the plaintiff is generally responsible for the overall external business and management as representative director of the non-party company.

0. Each statement of evidence Nos. 5-1, 2, 6, and 7 is merely a formal and nominal purpose of the Plaintiff’s representative director, and it is insufficient to recognize that the Plaintiff has no right to conduct his/her business within the country or is executed under his/her name based on the registration name even in his/her external performance of business.

(2) Judgment on the second argument

In relation to the Plaintiff’s application for the payment of early re-employment allowance, there is no evidence to acknowledge that the Defendant’s employee tolds that he would pay early re-employment allowance to the Plaintiff. Furthermore, even if the Defendant’s employee stated the same purport to the Plaintiff, such circumstance alone does not lead to deeming that the Defendant issued a public statement that is trusted to the Plaintiff. Therefore, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.