(영문) 서울행정법원 2018.2.7. 선고 2017구단30736 판결

On December 19, 2016, the Defendant’s restriction on the payment of unemployment benefits and the order for return, and the disposition of additional collection against the Plaintiff (the Plaintiff specified the date of disposition in the warden as December 10, 2016, but the date of disposition can be recognized as of December 19, 2016, as seen below. As such, the Plaintiff’s specific date of disposition is deemed as a clerical error due to mistake, and thus, the correction is made accordingly).

Reasons

1. Details of the disposition;

A. On January 17, 2014, the Plaintiff received payment of KRW 8,400,000 (from January 4, 2014 to August 21, 2014) for job-seeking benefits under the High Employment Insurance Act from the Defendant, 210 days of the fixed number of wages, and KRW 40,000 of the daily amount of job-seeking benefits, since the Plaintiff received unemployment recognition from the Defendant on February 7, 2014, from February 10, 2014 to August 22, 2014, for the aggregate of eight times of unemployment recognition (from January 2, 2014 to August 21, 2014).

B. On April 4, 2014, May 30, 2014, and July 19, 2014, the Defendant: (a) received job-seeking benefits by having his/her spouse staying overseas at the time of receiving each unemployment recognition on behalf of the Plaintiff at the time of receiving each unemployment recognition; (b) thereby having his/her spouse file an application for job-seeking benefits via the Internet; (c) Article 44(2)3 of the Employment Insurance Act; (d) Article 65 Subparag. 9 of the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 27738, Dec. 30, 2016; hereinafter the same shall apply); (d) Article 89(6) of the former Enforcement Rule of the Employment Insurance Act (amended by Ordinance of the Ministry of Employment and Labor, No. 176, Dec. 30, 2016; and (d) returned job-seeking benefits to the Plaintiff on December 19, 2016.

[Reasons for Recognition] No dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 through 3, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In addition, in light of all the circumstances of this case, the Plaintiff provided the Defendant with the recognition of unemployment for the Plaintiff without any particular objection, and instead, the Defendant’s working-level personnel provided only information on the fact that they could receive job-seeking benefits only in the Republic of Korea, and did not know that they violated the Employment Insurance Act since they did not provide any guidance on the application for representation during overseas stay, and there was no intention on the violation of the Employment Insurance Act, and the Plaintiff was the original resident of the Republic of Korea and had no choice but to inevitably stay abroad for a certain period of time for re-employment abroad, and the Plaintiff was actually making best efforts to job-seeking activities for job-seeking activities and received job-seeking benefits while complying with the strict requirements for applying for recognition of eligibility for employment insurance. The instant disposition should be deemed unlawful as a disposition that the Defendant abused and abused discretion

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Under Article 44(2) and (3) of the Employment Insurance Act, Article 65 of the Enforcement Decree of the Employment Insurance Act, and Article 89(6) of the Enforcement Rule of the Employment Insurance Act, an eligible recipient who intends to obtain recognition of unemployment can, in principle, obtain recognition of unemployment by submitting a certificate stating the reasons why an eligible recipient could not appear at an employment security office, on the date designated by the head of the employment security office within the scope of one week through four weeks from the date of unemployment report, and by reporting his/her efforts for reemployment. In exceptional cases, an eligible recipient may obtain recognition of unemployment by submitting a certificate indicating whether he/she could not directly report reemployment activities and income generated through information and communications networks. However, a person who is recognized by the head of the employment security office to report whether an eligible recipient could directly report reemployment activities and income generated through an information and communications network to the employment security office by directly utilizing an authorized certificate on the date designated by the head of the employment security office.

In full view of the regulatory structure, form, and content of the Employment Insurance Act, the Employment Insurance Act only lists cases in which a person can obtain unemployment recognition without having been present at the Employment Insurance Office, and the purport of the Employment Insurance Act stipulating the principle of direct appearance is to solve economic difficulties caused by unemployment by paying the amount of benefits needed for his/her daily life when a worker is in a unemployment state, and at the same time to prevent unfair payment of job-seeking benefits by directly checking the intent and ability to work for reemployment. As such, among the special cases of the Employment Insurance Act, those who intend to obtain unemployment recognition using information and communications networks among those who intend to obtain unemployment recognition should be deemed to be able to obtain unemployment recognition only by completing a report of job-seeking benefits by directly using an authorized certificate while staying in Korea, as in the case of “direct attendance at the Employment Insurance Office.”

2) As seen earlier, if the Plaintiff was paid job-seeking benefits through his/her spouse’s agent’s application while staying abroad, the Plaintiff shall be deemed to have received job-seeking benefits based on “false or other unlawful means” in violation of the Employment Insurance Act and subordinate statutes, and in particular, comprehensively taking into account the following circumstances, i.e., the Plaintiff appears to have received employment insurance entitlement by being present directly to the Defendant at the time of filing the initial application for job-seeking benefits, i.e., the Plaintiff appears to have received employment insurance entitlement. Even if the beneficiary certificate was designated as “I have to prepare and transmit an application for unemployment recognition with his/her own authorized certificate.” ② The circumstance that the Defendant used the unemployment recognition and paid job-seeking benefits to the Plaintiff without any particular objection is the result of the Plaintiff’s false application made in violation of the Employment Insurance Act and subordinate statutes, and thus, it is difficult to deem that the Defendant granted a legitimate expectation for the Plaintiff’s continued payment of job-seeking benefits. In particular, considering the purport that the Defendant’s additional collection or exemption under Article 105 of the Enforcement Rule of Employment Insurance Act does not exist.

D. Sub-committee

Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.