2020 Copper109 Other (general administration)

Yellowel

Chang-si

Law Firm Gai General Law Office (Law Firm Gai, Counsel for defendant-appellant)

[Defendant-Appellee]

Head of the Daegu Regional Employment and Labor Office Port Office

A litigation performer-friendly

June 24, 2020

August 12, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The disposition for additional collection of KRW 23,400,000 against the Plaintiff on May 2, 2019 by the former Defendant to be placed in office shall be revoked.

1. Details of the disposition;

A. On December 23, 2016, the Plaintiff is a restaurant business operator who runs the restaurant business under the trade name, “carfs (hereinafter “instant place of business”). On January 28, 2019, the Plaintiff opened the instant place of business, and closed the business on January 28, 2019.

B. The Plaintiff filed an application for the employment promotion subsidy under the Employment Insurance Act with the Defendant on the ground that he/she was employed as a worker from December 28, 2016 as the employee, and received a total of KRW 7,80,000 (the employment promotion subsidy1) (the period of employment subject to payment: December 28, 2016 to December 27, 2017; hereinafter “instant employment promotion subsidy”). The instant person eligible for support is a person who is in the second degree of matrimonial relationship as the Plaintiff’s wife.

A person shall be appointed.

C. On May 2, 2019, the Defendant issued a disposition to restrict the payment of subsidies for employment promotion for eight months from May 1, 2019 to January 31, 2020 pursuant to Article 35 of the Employment Insurance Act, Article 56 of the former Enforcement Decree of the Employment Insurance Act, and Article 79 of the Enforcement Rule of the Employment Insurance Act on the ground that “the Plaintiff was unlawfully paid the instant employment promotion subsidy by hiring the instant person eligible for support who is in the second degree of affinity relationship” (hereinafter “the instant disposition”). The Defendant issued a disposition to refund the instant employment promotion subsidy of KRW 7,80,000,000 and additionally collect KRW 15,60,000 ( = KRW 7,80,000,000,000) (hereinafter “the instant disposition”). On May 27, 2019, the Plaintiff claimed for the administrative appeal against the Central Administrative Appeals Commission (hereinafter “the instant disposition”).

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 4, Eul's 1 through 7, the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering the fact that the person eligible for support of this case worked in the workplace of this case during the period of employment eligible for the payment of the instant incentives, and the Plaintiff paid normal wages to the workplace of this case, and the Plaintiff was economically difficult for the Plaintiff, and that the Plaintiff was unfairly paid the instant incentives upon the Defendant investigator’s attendance and recognized the fact that the Plaintiff would return the instant incentives for employment promotion, the instant disposition that collects twice the instant incentives in excess of the refund of the instant incentives for employment promotion should be revoked unfairly or excessively harsh.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Article 35(1) of the Employment Insurance Act provides that "the Minister of Labor may order a person who has received, or intends to receive, support for employment security and vocational skills development programs under this Chapter by fraud or other improper means to restrict such support or to return already subsidized support, as prescribed by Presidential Decree." Article 35(2) of the same Act provides that "the Minister of Employment and Labor may order the person who has received, or has received, such support, to return the subsidy

In addition, Article 78(1)1 of the Enforcement Rule of the same Act provides that “If there is no number of times when the Minister of Employment and Labor issued a restriction on payment or a return order pursuant to Article 35(1) of the Act, the amount additionally collected pursuant to Article 35(2) of the Act by fraud or other improper means is double the amount that the said person received by the said person by fraud or other improper means.” Meanwhile, “The amount of sanctions for return order and additional collection under Article 35 of the Employment Insurance Act can be imposed” refers to any fraudulent act conducted by an unqualified business owner in order to conceal the eligibility to receive or reduce the eligibility to receive new employment promotion incentives (see, e.g., Supreme Court Decisions 2006Du16984, Mar. 30, 207; 2006Du16984, Jun. 19, 2009).

2) In full view of the following circumstances revealed through the facts acknowledged as above and the overall purport of the evidence and arguments revealed earlier, the Plaintiff’s act of receiving employment promotion grants by employing the instant persons eligible for support constitutes “a case where the Plaintiff received subsidies by false or other unlawful means” under Article 35(1) of the Employment Insurance Act, and it is difficult to view the instant disposition as unfair or excessively harsh. Therefore, the Plaintiff’s assertion is without merit.

A) Article 44(3)4 of the Enforcement Rule of the Employment Insurance Act provides that "the spouse of the business owner, blood relatives and relatives within the fourth degree of relationship" shall be subject to restrictions on employment promotion. The Plaintiff employed the instant person eligible for support despite being aware of such provision at the time of applying for the employment promotion subsidy. (b) The Defendant separately prepared an inquiry item that "the business owner of a place of business returning to the fourth degree of relationship and the instant person eligible for support fall within the fourth degree of relationship and relatives within the fourth degree of relationship," thereby preventing the unjust receipt of employment promotion subsidy, and the Plaintiff actively induced the Defendant by indicating "not to fall within the above question," while preparing the above confirmation document on April 18, 2017. The instant person eligible for support also responded to the question that "the Plaintiff is the relative by blood relatives within the fourth degree of relationship and relatives within the fourth degree of relationship" in the form of "written confirmation of the employment promotion subsidy."

C) According to the ordinary conditions of the labor market, the incentives for employment promotion are paid to promote the stability of workers’ livelihood and economic revitalization by facilitating the job-seeking activities of workers who are difficult to find a job. In addition, in order for a good number of workers to benefit more than the Plaintiff, strict sanctions against illegal recipients, such as the Plaintiff, are required. The instant disposition was conducted at the necessity of public interest to prevent illegal acts that put the Plaintiff at a disadvantage and abuse of the system for employment promotion support in the future, and it cannot be deemed that the instant disposition is remarkably unfair in weighing and balancing the disadvantages the Plaintiff received and the need for public interest as above.

D) The amount additionally collected pursuant to Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act is pursuant to Article 78(1)1 of the Enforcement Rule of the Employment Insurance Act. In light of the purpose and purport of the above employment promotion incentive, even if the above provision uniformly provides two times the additionally collected amount, it cannot be deemed that it does not in itself conform to the Constitution or the law. The Plaintiff’s payment of wages to a person eligible for support of the instant case or that the instant workplace was permanentized, etc. cannot be deemed unreasonable

E) Article 78(2) of the Employment Insurance Act provides that a person who voluntarily reported a false or other unlawful act may not be additionally collected before an investigation into the offender himself/herself or his/her workplace is conducted. However, the Plaintiff merely expressed that he/she cannot attend the investigator’s attendance notice for an investigation into illegal demand and supply, and that he/she would return the incentives for employment promotion. Therefore, it cannot be deemed that there was a voluntary report under Article 78(2) of the Employment Insurance Act

3. Conclusion

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

The presiding judge Park Jong-ho

Judges or Full-Time Judge

Judges Park Jong-chul

1) The evidence No. 1 (the payment restriction, return order, and notice of decision to additionally collect), and the evidence No. 2 (the details of subsidies) indicated as “employment promotion support”

However, according to the entry of the application (No. 1), the Plaintiff is before the former Enforcement Decree of the Employment Insurance Act (amended by Presidential Decree No. 30296, Dec. 31, 2019).

Article 26 (1) 1 of the Employment Insurance Act appears to have applied for the incentives for employment promotion under Article 26 (1) of the Act, and Article 26 of the Employment Insurance Act is deemed to have applied for the incentives for employment promotion.

With the revision of Presidential Decree No. 27738, the term was changed from "employment promotion support" to "employment promotion support". Accordingly, the term is changed to "in hereinafter.

Promotional incentives shall be referred to as "promotional incentives".